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UNANIMITY AND DISAGREEMENT
ON THE SUPREME COURT
Cass R. Sunstein†
In 2013, the Supreme Court showed an unusually high rate of unanimous decisions—the highest, in fact, since 1940. This increase in unanimity, long favored by Chief Justice John Roberts, places a spotlight on an
insufficiently appreciated fact: in 1941, the Supreme Court experienced a
radical transformation. Almost immediately, it changed from a court that
had operated by consensus, with very few separate opinions, into something
closer to nine separate law offices, with a large number of dissenting opinions
and concurrences and with a significant rate of 5-4 divisions. Remarkably,
the patterns established in the early 1800s continued until 1941, and the
patterns established in the early 1940s have persisted to the present day. The
transformation of 1941 appears to be attributable, in significant part, to the
leadership style of Chief Justice Harlan Fiske Stone, who had no aversion to
separate opinions and split decisions, and who was a frequent dissenter himself. The transformation offers general lessons not only about consensus and
dissent within courts, but also about broader relationships among leaders,
personnel, path dependence, prevailing norms, and the Court’s future. With
respect to group behavior, it suggests the possibility of multiple equilibria:
with small differences in leadership style and prevailing norms, the level of
publicly expressed dissent can either grow or wither. With respect to the normative issues, the standard arguments in favor of a higher level of consensus
within the Court—pointing to the values of legitimacy, stability, and
minimalism—rest on fragile empirical foundations. It is true that a badly
fractured Supreme Court can create uncertainty, and that internal divisions
have costs as well as benefits, but there is no sufficient reason to hope for a
return to the pre-1941 patterns.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. THE TRANSFORMATION OF 1941 . . . . . . . . . . . . . . . . . . . . . . . . . .
A. The Era of Consensus: 1800-1941 . . . . . . . . . . . . . . . . . . .
B. The Era of Independent Law Offices: 1941-Present .
C. What Happened in 2013? A Note . . . . . . . . . . . . . . . . . . .
II. EXPLANATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. The Norm of Consensus . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. What Happened in 1941? . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Chief Justice Stone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
770
773
776
780
783
785
785
789
790
† Robert Walmsley University Professor, Harvard University. I am grateful to Mary
Schnoor for superb comments and indispensable research assistance, above all with the
statistical analysis. Thanks as well to Jon Elster, Noah Feldman, Jane Mansbridge, Martha
Minow, Eric Posner, Mark Tushnet, and Adrian Vermeule for valuable comments.
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2. New and Independent-Minded Justices . . . . . . . . . . . . . .
3. The Judiciary Act of 1925 . . . . . . . . . . . . . . . . . . . . . . . . .
4. The Case Mix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6. Legal Realism and the Nature of Legal Reasoning . . .
C. Why Have the Patterns
Been Relatively Stable After 1941? . . . . . . . . . . . . . . . . . .
III. EVALUATING THE MODERN ERA . . . . . . . . . . . . . . . . . . . . . . . . . .
A. The Benefits of Disagreement . . . . . . . . . . . . . . . . . . . . . .
B. Credibility, Legitimacy, and “Monolithic Solidarity” .
C. Politicization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Stability and Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Minimalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F. A Brief Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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INTRODUCTION
It is common to notice, and sometimes to deplore,1 the absence
of consensus on the Supreme Court. On many of the great issues of
the day, the Court has been divided 5-4.2 Explicitly concerned about
the problem of legitimacy, Chief Justice John Roberts suggested in
2006 that the Court should reorient itself in the direction of greater
unanimity and fewer separate opinions.3 The Chief Justice contended
that “the most successful chief justices help their colleagues speak with
one voice.”4 In his view, “[u]nanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law
and the continuity of the Court; by contrast, closely divided, 5-4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.”5
1
See Adam Liptak, The Polarized Court, N.Y. TIMES (May 10, 2014), http://www.ny
times.com/2014/05/11/upshot/the-polarized-court.html (noting that the deep divisions
on the Court are “a recipe for dysfunction” and “may do lasting damage to its prestige and
authority and to Americans’ faith in the rule of law”).
2
See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Shelby County
v. Holder, 133 S. Ct. 2612 (2013); Citizens United v. FEC, 558 U.S. 310 (2010) (three
landmark cases decided by a 5-4 split).
3
See Jeffrey Rosen, Roberts’s Rules, ATLANTIC (Jan. 1, 2007, 12:00 PM), http://
www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559/ (“In particular,
Roberts declared, he would make it his priority, as Marshall did, to discourage his colleagues from issuing separate opinions.”).
4
Id.
5
Id. Note that in the civil law tradition, opinions are announced without dissents,
and hence opinions give the appearance of unanimity. See Ruth Bader Ginsburg, The Role
of Dissenting Opinions, 95 MINN. L. REV. 1, 2 (2010), and consider this suggestion: “In civillaw systems, the nameless, stylized judgment, and the disallowance of dissent are thought
to foster the public’s perception of the law as dependably stable and secure.” Id. at 3.
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Under his leadership, however, there has not been a reorientation toward unanimity. In general, the patterns that concerned the
Chief Justice in 2006 have been maintained.6 The only exception is
the 2013 Term, which saw an apparent shift in the direction that he
favored, with an unusually high percentage of unanimous cases and a
correspondingly significant decrease in dissenting opinions.7 In both
cases, the relevant rates were the lowest since 1940.8 It remains to be
seen whether the 2013 Term is an outlier or instead a harbinger of an
emerging norm toward higher levels of consensus.
In this Article, I have three goals. The first is to offer an account
of voting patterns within the Supreme Court over time. As we shall
see, it is only a modest oversimplification to say that the Court has had
two eras, divided by a single year: 1941.9 Before that year, the Court
was overwhelmingly likely to decide cases without either dissents or
separate concurrences, and 5-4 divisions were exceedingly rare. Between 1801 and 1940, the relevant patterns were essentially identical.10 After 1941, dissents and concurrences suddenly became
routine, and 5-4 divisions became unremarkable. Between 1941 and
the present, the relevant numbers have not greatly changed (with the
partial exception of 2013).11 It is not an overstatement to say that in
certain important respects, the modern Supreme Court was born in
1941.
These remarkable patterns are known among political scientists,
who initially established their existence,12 but they are not widely appreciated within the legal culture. They should be, with the aid of
statistical analysis.13 As we shall see, an understanding of the patterns
has broad implications for thinking not only about the Supreme
Court but also about the role of institutional leaders, the emergence
6
See infra Figures 11–13.
See infra Part I.C.
8
See infra notes 69–72 and accompanying text.
9
See discussion infra Part I and Figures 1–3.
10
See discussion infra Part I.A.
11
See discussion infra Part I.B.
12
The original treatment is C. HERMAN PRITCHETT, THE ROOSEVELT COURT: A STUDY
IN JUDICIAL POLITICS AND VALUES, 1937–1947 (1948); Pritchett noticed that “the 1941–42
term was definitely a turning point for the Roosevelt Court.” Id. at 40. In my view, the best
discussion remains Thomas G. Walker et al., On the Mysterious Demise of Consensual Norms in
the United States Supreme Court, 50 J. POL. 361 (1988). I owe a particular debt to that discussion here. An exceedingly valuable, recent treatment is PAMELA C. CORLEY ET AL., THE
PUZZLE OF UNANIMITY: CONSENSUS ON THE UNITED STATES SUPREME COURT (2013); a relevant part of that discussion can be found in Pamela C. Corley et al., Revisiting the Roosevelt
Court: The Critical Juncture from Consensus to Dissensus, 38 J. SUP. CT. HIST. 20, 27–32 (2013).
13
One of my principal goals here, in fact, is to provide some tests of the significance
of apparent changes over time. See infra Appendix. Analyses of any such changes, and of
differences in voting patterns among the Justices, greatly benefit from use of such tests,
because some apparently noteworthy changes and differences turn out to be insignificant
in the light of small sample sizes.
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and revision of norms,14 and the conditions for multiple equilibria in
law and politics.
My second goal is to explain those patterns, including the rise of
the norm of consensus, the shift in 1941, and the relative stability of
the post-1941 period. Was the pre-1941 period a kind of imposition,
brought about largely by the force of tradition and the persuasiveness
and authority of relevant Chief Justices, above all Chief Justice John
Marshall? And what explains the sudden transformation—and the
fact that it has proved robust? If we exercised our imaginations, we
could envision a Court—in, say, 1970, or 1980, or 2015—that returned to the patterns of the pre-1941 era. The fact that, to date, such
a Court belongs to the realm of the imagination requires a separate
explanation. My basic account emphasizes two factors: path dependence and institutional culture.15 Chief Justice Marshall played the
crucial role in establishing the original norm of consensus,16 and
Chief Justice Harlan Fiske Stone played a corresponding role in eliminating that norm.17 Without these two Chief Justices, different paths
are entirely imaginable.18 But after both of them left the bench, institutional culture and the norms for which they were largely responsible
became exceedingly important.19
My third goal is to evaluate the post-1941 status quo, in which we
see frequent separate opinions and a high rate of 5-4 decisions (on
average, about 17% annually).20 Those who approve of the pre-1941
norm defend their view by reference to the values of institutional
credibility, stability, and minimalism.21 As we shall see, however, their
14
For valuable discussion, with implications for the practices discussed here, see
CRISTINA BICCHIERI, THE GRAMMAR OF SOCIETY: THE NATURE AND DYNAMICS OF SOCIAL
NORMS 4–7, 29–30 (2006) (discussing the different mechanisms by which different types of
norms can induce conformity); EDNA ULLMANN-MARGALIT, THE EMERGENCE OF NORMS 8
(1977) (theorizing that norms do not come into existence at a definite point in time or
from a manageable number of identifiable acts but rather as a result of complex patterns
of behavior of a large number of people over a protracted period of time); Edna
Ullmann-Margalit, Revision of Norms, 100 ETHICS 756, 756 (1990) (explaining that with the
alterations of norms, the patterns of conformity, approval, and disapproval associated with
them may also alter).
15
“Culture” should not, of course, be taken as a black box; it must be explained by
reference to the beliefs and actions of individuals. See discussion infra Part II.A–B (emphasizing particular Justices’ assessments about whether to write separately).
16
See infra note 78 and accompanying text.
17
See discussion infra Part II.B.1.
18
These conclusions attest to certain arguments about the inevitability of counterfactual history and the tight connection between causal claims and claims about causation.
See JON ELSTER, LOGIC AND SOCIETY: CONTRADICTIONS AND POSSIBLE WORLDS 176 (1978) (“If
we hold a counterfactual theory of causation . . . we are of course committed to saying that
causation involves counterfactuals . . . .”).
19
See discussion infra Part II.
20
See infra note 23 (finding an annual average of 16.5% cases decided by a one-vote
margin from 1941 to 2013).
21
See discussion infra Part III.B–E.
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arguments depend on empirical assumptions that are unlikely to hold
true. At least in general, there is no good reason to believe that the
post-1941 patterns are a significant problem for the Court in particular or for the nation in general.22
I
THE TRANSFORMATION
OF
1941
For orientation, here are three graphs that show the rates of dissents, concurrences, and divisions by a one-vote margin (5-4 or 4-3)
from 1801 through 2013.23 The essential picture is immediately clear:
it is as if the United States has had two Courts, operating in accordance with different norms. Something quite dramatic happened in
the early 1940s, and in particular, 1941 marks the beginning of the
transformation.24
FIGURE 1. PERCENTAGE OF DECISIONS WITH ONE
DISSENTING OPINIONS
OR
MORE
100%
80%
60%
40%
20%
0%
1800
1820
1840
1860
1880
1900
1920
Term
1940
1960
1980
2000
22
See discussion infra Part III.F.
All numbers for 1801–2009 are from LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS & DEVELOPMENTS 246–69 (5th ed. 2012). Numbers for
2010–2013 are from Harold J. Spaeth et al., Version 2014 Release 01, SUP. CT. DATABASE,
http://supremecourtdatabase.org/data.php (last visited Mar. 22, 2015) [hereinafter SUP.
CT. DATABASE]. As used here, the rate of dissent is the percentage of total opinions in a
Term that contain one or more dissenting opinions; the rate of concurrence is the percentage of total opinions in a Term that contain one or more concurring opinions; and
the rate of cases decided by a one-vote margin is the percentage of the total cases decided
by a 5-4 or 4-3 split. The total opinions in a Term are taken to be all full written opinions,
in addition to per curiam opinions following oral argument.
24
For a similar conclusion, but with an emphasis on the importance of the immediately subsequent years as well, see Corley et al., supra note 12, at 24–27 (analyzing each
Justice’s increasing level of dissenting votes between 1941 and 1946).
23
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CONCURRING OPINIONS
OR
MORE
100%
80%
60%
40%
20%
0%
1800
1820
1840
1860
FIGURE 3. PERCENTAGE
1880
OF
1900
1920
Term
CASES DECIDED
1940
BY
1960
1980
2000
ONE-VOTE MARGIN
100%
80%
60%
40%
20%
0%
1800
1820
1840
1860
1880
1900
1920
Term
1940
1960
1980
2000
It is particularly puzzling that the breakdown of consensus occurred not during but in the aftermath of a period in Supreme Court
history that is thought to be one of particular contestation, and that
famously split the Justices. From 1905 until 1937, the Court was engaged in a series of intense contests with the executive branch, especially on constitutional questions involving the kinds of regulations
associated with the New Deal and Progressive Eras. The period between 1905 and 1937, often described as the Lochner era, was one in
which the Court frequently struck down important legislation, and indeed, those years produced some of the most important, and most
energetic, dissenting opinions in the Court’s history.25 Notably, however, the norm of consensus was very much in force. In 1910, for example, 89% of the Court’s decisions were unanimous,26 and between
25
See, e.g., Adkins v. Children’s Hosp., 261 U.S. 525, 567 (1923) (Holmes, J., dissenting); Lochner v. New York, 198 U.S. 45, 74 (1905) (Holmes, J., dissenting) (two such dissents from Justice Holmes); see also PRITCHETT, supra note 12, at 1–9 (discussing the
approach of the pre-1937 Justices).
26
EPSTEIN ET AL., supra note 23, at 247 tbl.3-1. This Article defines decisions to be
“unanimous” if they are decided by a 9-0 (or 8-0) vote. This definition includes decisions
that contain concurrences in the judgment, which are not unanimous in the strictest sense.
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1911 and 1935, the percentage of cases without any dissenting opinions was always over 80%.27
In fact, 1937 is familiarly thought to be the year that those debates came to an end, with a famous retreat by the Court.28 But between 1933 and 1937, when the conflict between the Roosevelt
Administration and the Court was at its height,29 the rate of unanimous decisions was quite high, and saw a reduction only in 1937 itself,
when significant doctrinal changes split the Court:
OF
CASES DECIDED UNANIMOUSLY
100%
80%
60%
40%
20%
0%
1931
1932
1933
1934
1935
1936
1937
1938
Term
In 1937 and the years immediately following, Roosevelt was able
to repopulate the Court with Justices of his own choosing.30 And in
those years, the Court is not known for having been divided by historically important doctrinal disagreements.31 How puzzling, then, that
consensus would break down within that repopulated Court and in a
relatively quiet period. To make progress on that puzzle, it is important to distinguish between an actual consensus on the one hand and a
norm of consensus on the other.32 With an actual consensus, the
The broader definition is used here on the ground that if no one dissents from the judgment, the Justices can be taken to be in relevant accord.
27
Id. at 252–53 tbl.3-2.
28
See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (1937).
29
PRITCHETT, supra note 12, at 4–9.
30
Roosevelt nominated Hugo Black in 1937, Stanley Reed in 1938, Felix Frankfurter
and William O. Douglas in 1939, Frank Murphy in 1940, and Harlan Fiske Stone, James
Byrnes, and Robert H. Jackson on the same day in 1941. After Justice Byrnes resigned in
order to lead the Office of Economic Stabilization, Roosevelt nominated Wiley Blount
Rutledge in 1943. Supreme Court Nominations, Present–1789, U.S. SENATE, available at http://
www.senate.gov/pagelayout/reference/nominations/Nominations.htm (last visited Mar.
22, 2015).
31
See PRITCHETT, supra note 12, at 23 (“President Roosevelt was reputed to have selected as nominees for the Supreme Court men who were partisans of his own social and
political philosophy, which they were expected to write into law in their decisions.”).
32
Cf. Adrian Vermeule, The Parliament of the Experts, 58 DUKE L.J. 2231, 2254 (2009)
(“[E]xpert panels sometimes gin up a consensus that does not actually exist.”); Philippe
Urfalino, Apparent Consensus and Voting: Two Modes of Collective Decision-Making 12 (Amy
Jacobs trans., Apr. 29, 2006), available at http://www.academia.edu/4277481/Apparent
_Consensus_and_Vote (suggesting that a defining characteristic of decision making by
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Justices agree with one another; they do not need any kind of norm to
reach complete or near unanimity. With a norm of consensus, patterns of complete or near unanimity will emerge even though the
Justices actually disagree. Because of the norm, that disagreement is
not disclosed publicly. In any period, it might be exceedingly difficult
to know whether high levels of public agreement reflect actual consensus or a norm of consensus.33 As we will see, the historical patterns
seem to have a great deal to do with a sudden decline of the norm of
consensus, and much less with an increase in actual disagreement.34
A. The Era of Consensus: 1800-1941
1. The basic picture. From 1801 through 1836, half of the Terms
had dissents in fewer than 5% of cases, and the average rate of dissents was 6.3%.35 In every year in that period, fewer than 20% of cases
had even a single dissent.36 From 1837 to 1940, the overall dissent
rate was 8.5%, and the dissent rate exceeded 20% during only seven
Terms (1837, 1845, 1849, 1852, 1853, 1854, and 1938).37 From 1801
through 1940, the total dissent rate was 8.4%, and the median Term
had a dissent rate of 7.9%.38
If we look at concurrences, we will see a similar pattern: from
1801 through 1940, the overall percentage of cases with at least one
concurring opinion was 1.7%, and the median Term had a rate of
1.4%.39 Remarkably, there was no Term in which the rate of concurrences was as high as 15%, and the concurrence rate exceeded 10%
during only five Terms (1805, 1837, 1842, 1847, 1856).40 In fact,
thirty-six years had no concurrences at all, and in seventy-two years
(more than half the total), the number of concurrences was one or
fewer.41
Splits of 5-4 or 4-3 were also exceedingly rare. By 1940, the rate
of such splits had exceeded 10% only once (1810), and it exceeded
apparent consensus is “collective recognition that an apparent consensus has been
reached,” and that “[a]pparent consensus does not require unanimity but rather, in addition to some participant approval, the consent of participants reluctant to approve the
decision”).
33
For an illuminating and successful effort showing the importance of the norm, see
Lee Epstein et al., The Norm of Consensus on the U.S. Supreme Court, 45 AM. J. POL. SCI. 362,
376 (2001) (analyzing Chief Justice Waite’s “docket books” to show that between 1874 and
1887 the norm of consensus worked to hide private disagreements on the Court).
34
See discussion infra Part II.C.
35
See EPSTEIN ET AL., supra note 23, at 250 tbl.3-2.
36
See id.
37
See id. at 250–53 tbl.3-2.
38
See id.
39
See id. at 256–59 tbl.3-3.
40
See id.
41
See id.
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5% only twelve times.42 By contrast, the percentage of unanimous
cases was quite high—in most years at least 80%.43 Overall, the percentage of unanimous decisions was around 90%, and it might have
been higher.44
2. A closer look. Here is a graphical presentation of the rates of
dissents, concurrences, and one-vote margins from 1801 to 1940:
DISSENTING OPINIONS
OR
MORE
100%
80%
60%
40%
20%
0%
1800
1820
1840
1860
1880
1900
1920
1940
Term
CONCURRING OPINIONS
OR
MORE
100%
80%
60%
40%
20%
0%
1800
1820
1840
1860
1880
1900
1920
1940
Term
42
43
44
See id. at 262–65 tbl.3-4.
See id. at 247–49 tbl.3-1, 250–52 tbl. 3-2.
Corley et al., supra note 12, at 22.
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BY
ONE-VOTE MARGIN
100%
80%
60%
40%
20%
0%
1800
1820
1840
1860
1880
1900
1920
1940
Term
Here is a division of the patterns across relevant Chief Justices:
DISSENTING OPINIONS
OR
MORE
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Marshall
(18011834)
Taney
(18361863)
Chase
(18641872)
Waite
(18731887)
Fuller
(18881909)
White
(19101920)
Taft
(19221929)
Hughes
(19301940)
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CONCURRING OPINIONS
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OR
MORE
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Marshall
(18011834)
Taney
(18361863)
Chase
(18641872)
OF
Waite
(18731887)
Fuller
(18881909)
CASES DECIDED
White
(19101920)
BY
Taft
(19221929)
Hughes
(19301940)
ONE-VOTE MARGIN
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Marshall
(18011834)
Taney
(18361863)
Chase
(18641872)
Waite
(18731887)
Fuller
(18881909)
White
(19101920)
Taft
(19221929)
Hughes
(19301940)
An obvious question is whether we can find statistically significant
changes in all three trends across particular Chief Justices. In general,
the answer is that we cannot.45 The graphs do show some variations,
to be sure: if we look carefully by Chief Justice, we can see an increase
in dissents under Chief Justice Hughes, with a 13% rate compared by
10% under Taft and 6% under White.46 But differences of this rela45
Based on application of the Mann-Whitney U test, with significance at a p-value <
0.01 (to account for multiple hypothesis testing), the only significant changes between
consecutive Chief Justices were the increase in the rate of dissenting opinions from
Marshall to Taney, see supra Figure 8, and the increase in the rate of cases decided by a onevote margin from Taft to Hughes. See supra Figure 10. For a more detailed analysis, see
infra Appendix.
46
See supra Figure 8.
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tively small magnitude are consistent with the expected variation of
the data, and hence the patterns were not substantially different
throughout this lengthy period.
Of course this conclusion speaks of aggregate cases, and not of
particular disputes, where dissents can be found, and where disagreements were occasionally intense. The Court was famously divided in
some of the great cases in American law, including Dred Scott v. Sandford,47 Lochner v. New York,48 Whitney v. California,49 and Adkins v. Children’s Hospital.50 In this light, we might describe the prevailing norm
of consensus as suggesting that members of the Court should not express
disagreement unless they were justified in doing so in light of the intensity of
their disagreement and the magnitude of the stakes. As we shall see, this
formulation seems to capture an understanding established under
Chief Justice John Marshall.51
B. The Era of Independent Law Offices: 1941-Present
1. The basic picture. From 1941 to the present, the picture is altogether different. In 1941, the rate of cases with dissenting opinions
jumped to 29%, and then to 43% in 1942, and to 52% in 1943.52
From that point, it has fallen below 50% in only four years (1996,
1997, 2005, and 2013).53 The overall rate of dissents is 60.5%, and in
the median Term, the rate was 60.7%.54
The rate of concurrences grew to 11% in 1941 and then to 16%
in 1942.55 From that point, it has never fallen below 10%, and indeed
it has been below 20% in only two years (1943 and 1944).56 The overall rate of concurrences is 37%, and in the median Term, it is 38%.57
The percentage of cases decided by one vote jumped to 9.9% in
1941, and from that time, it has fallen below 10% in just twelve years.58
The overall percentage of one-vote split decisions is 16.6%, and in the
median year, it is 17.9%.59
47
60 U.S. (19 How.) 393 (1857) (decided 7-2, with six concurring opinions and two
dissenting opinions).
48
198 U.S. 45 (1905) (decided 5-4, with two dissenting opinions).
49
274 U.S. 357 (1927) (decided 9-0, with one concurring opinion).
50
261 U.S. 525 (1923) (decided 5-3, with two dissenting opinions).
51
See infra Part II.A.1.
52
EPSTEIN ET AL., supra note 23, at 253 tbl.3-2.
53
See id. at 253–55 tbl.3-2; SUP. CT. DATABASE, supra note 23.
54
See EPSTEIN ET AL., supra note 23, at 253–55; SUP. CT. DATABASE, supra note 23.
55
EPSTEIN ET AL., supra note 23, at 259 tbl.3-3.
56
57
See EPSTEIN ET AL., supra note 23, at 259–61 tbl.3-3; SUP. CT. DATABASE, supra note
23.
58
23.
59
23.
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The percentage of unanimous decisions fell to 61% in 1941, to
49% in 1942, and to 38.5% in 1943.60 From that point, it has exceeded 50% only four times (1996, 1997, 2005, and 2013), and it has
fallen below 40% in most years (40 out of 70).61
2. A closer look. The large shift unquestionably occurred under
Chief Justice Stone. Under Hughes, the rate of dissent was 13%; it
jumped to 45% under Stone. Under Hughes, the rate of concurrences was 3%; it jumped to 17% under Stone. Under Hughes, just
4% of cases were decided by one vote; that figure jumped to 11%
under Stone.62 In fact, the rate of expressed disagreement increased
during the 1940s and early 1950s, with an all-time record of 52% in
1943, exceeded by 60% in 1946, and then again by 80% in 1952.63
Here is a graphical presentation of the rates of dissents, concurrences, and one-vote margins between 1941 and 2013:
DISSENTING OPINIONS
OR
MORE
100%
80%
60%
40%
20%
0%
1940
1960
1980
Term
CONCURRING OPINIONS
2000
OR
MORE
100%
80%
60%
40%
20%
0%
1940
60
61
62
63
1960
1980
Term
EPSTEIN ET AL., supra note 23, 247 tbl.3-1.
Corley et al., supra note 12, at 24 fig.2.
Id. at 24.
2000
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ONE-VOTE MARGIN
100%
80%
60%
40%
20%
0%
1940
1960
1980
Term
2000
Here is a division of the patterns across relevant Chief Justices:
DISSENTING OPINIONS
OR
MORE
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Stone
(1941-1945)
Vinson
(1946-1952)
Warren
(1953-1968)
Burger
(1969-1985)
Rehnquist
(1986-2004)
CONCURRING OPINIONS
OR
Roberts
(2005-2013)
MORE
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Stone
(1941-1945)
Vinson
(1946-1952)
Warren
(1953-1968)
Burger
(1969-1985)
Rehnquist
(1986-2004)
Roberts
(2005-2013)
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ONE-VOTE MARGIN
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Stone
(1941-1945)
Vinson
(1946-1952)
Warren
(1953-1968)
Burger
(1969-1985)
Rehnquist
(1986-2004)
Roberts
(2005-2013)
Here again, an obvious question is whether we can find statistically significant changes between any Chief Justice and his replacement. For the most part, the changes in the bars’ heights are not
significant.64 From Figures 11–13, we can also see that there may be
gradual background trends of decrease (in dissenting opinion rates)
or increase (in concurring opinion rates) operating on a time scale of
multiple decades, but there has not been any abrupt or large-scale
change since 1941.
C. What Happened in 2013? A Note
The 2013 Term has been widely seen to be an outlier.65 In that
Term, the percentage of 5-4 divisions was relatively low—14%, the
lowest since 2005.66 At the same time, this number was well within the
post-1941 range (with twenty-five years since that time having lower
rates of 5-4 decisions).67 The percentage of cases with concurrences,
64
Based on application of the Mann-Whitney U test, with significance at a p-value <
0.01 (to account for multiple hypothesis testing), the only significant changes are the increase in percentage of decisions with concurring opinions from Warren to Burger, see
supra Figure 15, and the decrease in dissents from Burger to Rehnquist. See supra Figure
14. Again, in no case was there a significant change across all three trends, as there was
between Hughes and Stone. See supra Part I.B.2 (describing the changes between Hughes
and Stone). For details, see infra Appendix.
65
See, e.g., Adam Liptak, Compromise at the Court Veils Its Rifts, N.Y. TIMES, July 2, 2014,
at A1 (“[T]he number of unanimous decisions—a record for the Roberts court and the
highest percentage since at least 1953—masked some powerful disagreements . . . .”); Sean
Lengell, Supreme Court Not as Unified as It Looks, WASH. EXAMINER (July 2, 2014, 5:00 PM),
http://washingtonexaminer.com/supreme-court-not-as-unified-as-it-looks/article/25504
48 (noting that the increase in unanimous decisions and decrease in split decisions during
the 2013–14 Term does mean that the ideological divisions on the Court have subsided).
66
23.
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39%, was also well within the expected range, in fact quite close to the
average since 1941 (37%).68 But there was a dramatic increase in
unanimous opinions (at 62%)69 and an equally significant decrease in
the rate of dissenting opinions (at 39%).70 As a result, 2013 saw the
highest rate of unanimous opinions and the lowest rate of dissenting
opinions since 1940,71 and both changes represent statistically significant movements from the decades-long pattern.72
What accounts for the increase in unanimity? The most obvious
possibility, and the most intriguing one, is that Chief Justice Roberts
was finally able to succeed in carrying out the task he set for himself in
2006. Perhaps he was able to convince his colleagues to return to
some version of the pre-1941 norm. But for several reasons, it would
be premature to see the 2013 Term data as reflecting anything like
such a return. First, we have just seen that the rates of both dissents
and concurrences were within historical ranges; on these counts,
there was no major dip. Second, some of the apparently unanimous
decisions actually reflect a high degree of internal disagreement. In
NLRB v. Noel Canning, for example, involving recess appointments,
the Court was unanimous on the judgment, but divided 5-4 on the
most fundamental questions.73 Third, the Court has not, under Chief
Justice Roberts, shown any overall reduction in the levels of disagreement exemplified by the post-1941 patterns.74 It is also true that the
numbers might be an inadequate way of capturing the level of internal disagreement if the Court is split 5-4 on the most important questions—as is plausibly true for the 2013 Term.75 For these reasons, it is
far too early to think that there was, in 2013, a sufficient signal to
justify any conclusions about a new trend.
68
See EPSTEIN
ET AL.,
supra note 23, at 259–61 tbl.3-3; SUP. CT. DATABASE, supra note
23.
69
See SUP. CT. DATABASE, supra note 23. Different numbers have been reported, due
to different customs for counting per curiam opinions. This number was calculated in the
same way as the earlier data used here. See supra note 23.
70
See SUP. CT. DATABASE, supra note 23.
71
See EPSTEIN ET AL., supra note 23, at 247–55 tbls.3-1 & 3-2; SUP. CT. DATABASE, supra
note 23.
72
See discussion infra Appendix, for the method of calculating this difference.
73
134 S. Ct. 2550, 2577–78 (2014) (Breyer, J.); see id. at 2592 (Scalia, J., concurring)
(agreeing that the specific appointments were unconstitutional, but disagreeing with the
majority about the scope of the recess-appointment power).
74
See discussion supra Part I.B.
75
See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); McCutcheon
v. FEC, 134 S. Ct. 1434 (2014) (two landmark cases decided by a 5-4 split).
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II
EXPLANATIONS
What accounts for these patterns? In this section, I discuss, in
sequence, the norm of consensus, the dramatic change in 1941,76 and
the longstanding persistence of the patterns initially established in
that year. The principal account is one of path dependence: without
Chief Justice Marshall, the norm of consensus might never have developed at all. And without Chief Justice Harlan Fiske Stone, it is imaginable that it would have continued much longer, conceivably even to
the present day. But as we will see, existing norms, and in that sense
institutional culture, are also important. Once a path has been established, norms and culture might be established as well, and it might
not be easy for anyone, including a Chief Justice, to alter it.77
A. The Norm of Consensus
It is well known that Chief Justice John Marshall worked exceedingly hard, and quite successfully, to produce a norm in favor of unanimity.78 Production of that norm was hardly foreordained: with
another Chief Justice, the Court might have taken a radically different
course.
In its initial years under Chief Justice John Jay, the Court decided
cases seriatim, with opinions published by reverse seniority, so that the
Chief Justice delivered his opinion last. Often the last opinion was
followed by a brief paragraph announcing the outcome, headed with
three words: “By the Court.”79 Chief Justice Jay was succeeded by
Oliver Ellsworth, who maintained a great deal of continuity with this
practice, but who also reduced the tribunal’s reliance on seriatim
opinions and increased use of opinions of the Court, announced by
76
Walker et al., supra note 12, remains the most illuminating discussion, and it has
much influenced me here.
77
For relevant discussion of how norms are reformed or revised, see also
ULLMANN-MARGALIT, supra note 14, at 760–64 (addressing “patterns of presumptive norm
revision”).
78
See, e.g., Ginsburg, supra note 5, at 2–3 (“Marshall thought the ‘each-for-himself’
practice ill advised. In its place, he established a new tradition of announcing judgments
in a single opinion for the Court, which . . . he generally wrote himself.”) (citation omitted); Aaron J. Lay et al., The Mysterious Persistence of Non-Consensual Norms on the U.S. Supreme
Court, 49 TULSA L. REV. 99, 103 (2013) (“Marshall transformed the early Court . . . to a
model where separate opinions were discouraged and institutional opinions for the Court
as a whole became the norm.”); David M. O’Brien, Institutional Norms and Supreme Court
Opinions: On Reconsidering the Rise of Individual Opinions, in SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES 91, 92–93 (Cornell W. Clayton & Howard Gillman
eds., 1999) (noting that Marshall changed the “practice of rendering seriatim opinions” by
discouraging dissenting opinions and writing “the overwhelming number of the Court’s
opinions, even when he disagreed with a ruling”).
79
G. Edward White, The Internal Powers of the Chief Justice: The Nineteenth-Century Legacy,
154 U. PA. L. REV. 1463, 1466 (2006).
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the Chief Justice.80 We do not know if Ellsworth thought that it was
important to make this shift, or whether it was a simple matter of
convenience.81
Apparently focusing on the need for institutional legitimacy and
prestige, Chief Justice Marshall went much further. He wholly rejected the seriatim method of rendering decisions, and he worked successfully to promote unanimity within the Court.82 Under his
leadership, the preexisting “By the Court” paragraph was transformed
into the modern “opinion of the Court.”83 Marshall strongly discouraged dissenting opinions, and he himself wrote a large number of the
Court’s opinions, even if he was not in agreement with the ruling,
thus fortifying the idea of public unanimity.84 Under Marshall’s leadership, seriatim opinions disappeared.85 As Marshall explained,
The course of every tribunal must necessarily be, that the opinion
which is delivered as the opinion of the court, is previously submitted to the judges; and, if any of the reasoning be disapproved, it
must be so modified as to receive the approbation of all, before it
can be delivered as the opinion of all.86
Importantly, the “opinions of the Court” were ambiguous with
respect to the question of whether they reflected the views of all of the
Justices or only a majority.87 The public could not know the answer to
that question, which mattered because ambiguity worked to ensure
that if a particular Judge did not write separately, his own views would
not be revealed.88 This practice reduced the pressure to write separately.89 It was clear that some Justices, some of the time, silently acquiesced in the Court’s rulings, and indeed, several published
opinions explicitly acknowledged this norm. In one of his rare dissents, Marshall began with a disclaimer: “I should now, as is my cus80
Id. at 1467–68.
Id. at 1469.
82
See M. Todd Henderson, From Seriatim to Consensus and Back Again: A Theory of
Dissent 23 (John M. Olin Program in Law and Econ., Working Paper No. 363, 2007);
O’Brien, supra note 78, at 92; Walker et al., supra note 12, at 362.
83
White, supra note 79, at 1470.
84
O’Brien, supra note 78, at 92–93.
85
86
JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 282 (1996) (quoting
John Marshall, A Friend of the Union, PHILA. UNION, Apr. 28, 1819, reprinted in JOHN
MARSHALL’S DEFENSE OF MCCULLOCH V. MARYLAND 95 (Gerald Gunther ed., 1969)). On
the relationship between Marshall’s work on behalf of unanimity and the Court’s limited
prestige, see id. at 282–87.
87
88
See id. at 1473 (noting Thomas Jefferson’s letter to Justice William Johnson complaining that “the practice of silent acquiescence” prevented the public from knowing the
opinions of individual Justices).
89
See id. at 1474–75 (noting that Justice Johnson believed the “‘real cause’ of silent
acquiescence . . . was that it served to shield Justices who were unwilling or incapable of
writing opinions on a regular basis”).
81
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tom, when I have the misfortune to differ from this Court, acquiesce
silently in its opinion . . . .”90 So did Joseph Story: “Had this been an
ordinary case I should have contented myself with silence; but . . . I
have thought it not unfit to pronounce my own opinion . . . .”91 So
did Bushrod Washington: “It has never been my habit to deliver dissenting opinions in cases where it has been my misfortune to differ
from those which have been pronounced by a majority of this
Court.”92
These statements reveal that some of the time, a norm of consensus was very much in force and accounted for the absence of a public
dissent. Notwithstanding their silence, the Justices did not actually
agree. Because of his effectiveness in promoting that consensus,
Marshall can be seen as a norm entrepreneur, one who was able to succeed in part because of his multiple skills93 and in part because of his
distinctive role as Chief Justice. With respect to consensus and dissent, Marshall was undoubtedly the most important norm entrepreneur in the Court’s history—with the possible exception of Harlan
Fiske Stone, who was in crucial respects the anti-Marshall (as we shall
see).94
The practice of silent acquiescence was not without prominent
critics. In a letter to his appointee William Johnson, Thomas Jefferson
complained that with that practice, no one could possibly know “what
opinion any individual member gave in any case, nor even that he
who delivers the opinion, concurred in it himself.”95 Jefferson objected that “[t]he practice is certainly convenient for the lazy, the
modest & the incompetent,” because it “saves them the trouble of developing their opinion methodically and even of making up an opinion at all.”96
In his illuminating response, Johnson explained that after his
own appointment, a case arose
in which I differed from my brethren, and I thought it a thing of
course to deliver my opinion. But, during the rest of the session I
heard nothing but lectures on the indecency of judges cutting at
90
Bank of U.S. v. Dandridge, 25 U.S. (12 Wheat.) 64, 90 (1827) (Marshall, C.J., dissenting), quoted in White, supra note 79, at 1471 n.17.
91
The Nereide, 13 U.S. (9 Cranch) 388, 455 (1815) (Story, J., dissenting), quoted in
White, supra note 79, at 1471 n.17.
92
Mason v. Haile, 25 U.S. (12 Wheat.) 370, 379 (1827) (Washington, J., dissenting),
quoted in White, supra note 79, at 1471 n.17.
93
See generally SMITH, supra note 86, at 3–5 (discussing Marshall’s skills and noting that
there were seldom dissents during his time as Chief Justice).
94
See infra Part II.B.1.
95
Letter from Thomas Jefferson to William Johnson (Oct. 27, 1822), in 10 THE WRITINGS OF THOMAS JEFFERSON, 1816–1826, at 222, 225 (Paul Leicester Ford ed., 1899), quoted
in White, supra note 79, at 1473.
96
Id. at 1474 (alteration in original).
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each other, and the loss of reputation which the Virginia appellate
court had sustained by pursuing such a course. At length I found
that I must either submit to circumstances or become such a cypher
in our consultations as to effect no good at all.97
Interestingly, and in a way that seemed to support Jefferson’s emphasis on convenience “for the lazy, the modest & the incompetent,”98
Johnson went on to suggest that the “real cause” of silent acquiescence was a desire to protect the Justices who lacked either the will or
the ability to write separately.99 For Justices who lacked the capacity to
explain their views, silent acquiescence had significant advantages, because it relieved them of the obligation to say what they thought.100
Marshall served as Chief Justice for thirty-four years, and by the
time he left the bench, the norm of consensus had become well entrenched. For over a century after his departure, silent acquiescence
persisted.101 Until 1941, all of Marshall’s successors appeared to favor
the consensus norm.102 For example, Chief Justice Chase said “that
except in very important causes [filing a] dissent [was] inexpedient.”103 Chief Justice Taft strongly believed in the maxim “no dissent
unless absolutely necessary.”104 He once explained:
I don’t approve of dissentings generally, for I think in many cases
where I differ from the majority, it is more important to stand by
97
Letter from William Johnson to Thomas Jefferson (Dec. 10, 1822), quoted in
DONALD G. MORGAN, JUSTICE WILLIAM JOHNSON: THE FIRST DISSENTER: THE CAREER AND
CONSTITUTIONAL PHILOSOPHY OF A JEFFERSONIAN JUDGE 181–82 (1954), quoted in White,
supra note 79, at 1474.
98
Letter from Thomas Jefferson to William Johnson (Oct. 27, 1822), in 10 THE WRITINGS OF THOMAS JEFFERSON, supra note 95, quoted in White, supra note 79, at 1474.
99
Letter from William Johnson to Thomas Jefferson (Dec. 10, 1822), quoted in
MORGAN, supra note 97, at 182, quoted in White, supra note 79, at 1474.
100
This point suggests the possibility that the norm of consensus solved a collective
action problem, at least for some of the Justices. See ULLMANN-MARGALIT, THE EMERGENCE
OF NORMS, supra note 14, at 89–93, 104–109 (discussing “co-ordination norms” as a means
of solving recurrent coordination problems). With that norm in place, they could remain
silent in circumstances in which it was in their interest to do so. For the discussion of
“effort aversion,” see LEE EPSTEIN ET AL., THE BEHAVIOR OF FEDERAL JUDGES: A THEORETICAL
AND EMPIRICAL STUDY OF RATIONAL CHOICE 7, 12 (2013) (explaining that “[e]ffort aversion
includes both reluctance to work ‘too’ hard . . . and reluctance to quarrel with colleagues,”
which may be valued in professions with “little upward mobility” or “downward mobility”—
as is the case with federal judgeships).
101
See Walker et al., supra note 12, at 361 (“From John Marshall’s appointment as chief
justice to the end of the Charles Evans Hughes era, the Court exhibited relatively stable,
cohesive behavior. These years are marked by individual justices accepting the Court’s
majority opinions.”); White, supra note 79, at 1484 (“The jurisprudential climate that
helped foster the practices of silent acquiescence and noncirculation does not appear to
have been significantly modified for the balance of the nineteenth century . . . .”).
102
From the contemporary perspective, it is a genuine oddity that the Justices sometimes did not see the actual opinion before it was published—a point suggesting that the
reasoning reflected the views of only the author. White, supra note 79, at 1482.
103
O’Brien, supra note 78, at 93 (alteration in original).
104
Walker et al., supra note 12, at 382.
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the Court and give its judgment weight than merely to record my
individual dissent where it is better to have the law certain than to
have it settled either way.105
He wrote to Stone personally:
I am quite anxious, as I am sure we all are, that the continuity and
weight of our opinions on important questions of law should not be
broken any more than we can help by dissents . . . . I hope you will
look into this matter with care, because 5 to 4 decisions of the
Court, while they must sometimes occur, don’t help the weight of its
judgment.106
Chief Justice Hughes agreed with Taft.107 Justice Pierce Butler captured the longstanding view: “I shall in silence acquiesce. Dissents
seldom aid in the right development or statement of the law. They
often do harm. For myself I say: ‘lead us not into temptation.’ ”108
Justice Holmes and Justice Brandeis are sometimes treated as history’s “great dissenters,”109 but their behavior did not depart dramatically from the standards of the period, with an average of 2.48 and
4.40 dissents per Term, respectively.110 These rates are strikingly low
compared to (for example) the rates of 10.91 for Felix Frankfurter,
14.29 for William O. Douglas, 5.94 for William Brennan, and even
5.50 for Louis Powell, known as a centrist and hardly a dissenter.111
B. What Happened in 1941?
It is clear that in 1941 the norm in favor of consensus collapsed,
and it did so with spectacular speed. What happened? There are
many possible explanations;112 I discuss them in decreasing order of
plausibility.
105
O’Brien, supra note 78, at 93.
Letter from Chief Justice William Howard Taft to Justice Harlan F. Stone (Jan. 26,
1927) (Stone Papers, Box 76), quoted in Corley et al., supra note 12, at 31.
107
108
HENRY J. ABRAHAM, THE JUDICIAL PROCESS: AN INTRODUCTORY ANALYSIS OF THE
COURTS OF THE UNITED STATES, ENGLAND, AND FRANCE 224 (5th ed. 1986), quoted in Walker
et al., supra note 12, at 381.
109
O’Brien, supra note 78, at 93 (quoting Karl M. Zobell, Division of Opinion in the
Supreme Court: A History of Judicial Disintegration, 44 CORNELL L. Q. 186, 186–214 (1959)).
110
ALBERT P. BLAUSTEIN & ROY M. MERSKY, THE FIRST ONE HUNDRED JUSTICES: STATISTICAL STUDIES ON THE SUPREME COURT OF THE UNITED STATES 148 (1978).
111
Id. at 148–49. For relevant discussion by Justice Brennan, see William J. Brennan,
Jr., In Defense of Dissents, 37 HASTINGS L.J. 427 (1986); for Justice Ginsburg’s perspective, see
Ginsburg, supra note 5, at 2.
112
Valuable discussions include O’Brien, supra note 78, at 95–104; Walker et al., supra
note 12, at 364–84 (discussing five possible causes: (1) the enactment of the Judiciary Act
of 1925; (2) changes in the Court’s caseload; (3) the promotion of an Associate Justice to
Chief Justice; (4) changes in the Court’s composition; and (5) the leadership of the Chief
Justice).
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1. Chief Justice Stone
In 1941, Harlan Fiske Stone was elevated to the position of Chief
Justice. In the relevant respects, he was the anti-Marshall: in sharp
contrast to his predecessors, Stone was generally uninterested in consensus, and he actually seemed to favor the transformation that occurred on his watch.113 He chafed under the control of Chief Justice
Hughes and strenuously resisted the idea of silent acquiescence.114 As
early as 1930, Justice James McReynolds implored Stone not to dissent: “If the Court is broken down, then there will be rejoicing in certain quarters. I cannot think the last 3 dissents which you have sent
me will aid you, the law or the Court.”115 Stone’s answer was revealing: he complained that if the majority “insists on putting out
opinions which do not consider or deal with questions raised by the
minority, it must, I think, be expected that the minority will give some
expression to their views.”116
As Stone wrote in a candid passage, unambiguously separating
himself from Marshall and his successors, “[t]he right of dissent is an
important one and has proved to be such in the history of the
Supreme Court. I do not think it is the appropriate function of a
Chief Justice to attempt to dissuade members of the Court from dissenting in individual cases.”117 Indeed, Stone linked dissent with the
development of sound principles, which, he contended, “are the ultimate resultant of the abrasive force of the clash of competing and
sometimes conflicting ideas.”118
His own behavior tracked his stated conviction. As Chief Justice,
he dissented 13.5% of the time, a far higher rate than that of any of
his predecessors, and a higher rate than that of his two immediate
successors as well, as demonstrated in Table 1.
Chief Justice Stone did not merely welcome dissents and practice
what he preached; he also helped initiate a large number of internal
changes that were highly conducive to a breakdown of the previous
norms.119 These included significantly longer discussions in conference, in which competing positions were offered and debated, and in
113
See Walker et al., supra note 12, at 384 (noting that for Chief Justice Stone the cost
of achieving unanimity was not worth the cost of sacrificing strongly held convictions of
individual justices).
114
See id. at 383 (“During six terms [as an Associate Justice] . . . [Stone] wrote a higher
proportion of dissenting opinions than any of the other eight justices with whom he served
. . . . [H]e might well have cast even more dissenting votes had Chief Justices Taft and
Hughes not discouraged him from doing so.”).
115
116
Id.
117
ALPHEUS T. MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 608 (1956), quoted in
118
Id. at 629.
119
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which separate coalitions were developed.120 Under his leadership,
the Court also abandoned its previous rule in favor of twenty-four
hour deadlines for commenting on drafts—thus allowing for more extensive responses, which could easily be developed into concurrences
and dissents.121 With these changes, the Court began to develop into
separate law offices, with individual Justices elaborating their own
views, and feeling far freer to express those views in public.122
TABLE 1. DISSENT BEHAVIOR
Chief Justice
N of Cases
OF
ELEVEN CHIEF JUSTICES123
N of Chief
Dissent
Justice Dissents Proportion*
Marshall
1187
7
.0058
Taney
1708
38
.0222
Chase
1109
33
.0297
Waite
2642
45
.0170
Fuller
4866
113
.0232
White
2541
39
.0153
Taft
1708
16
.0093
Hughes
2050
46
.0224
Stone
704
95
.1349
Vinson
723
90
.1213
Warren
1772
215
.1213
*Number of Chief Justice dissents divided by number of cases.
2. New and Independent-Minded Justices
On the basis of these points, it would be possible to conclude that
with respect to the transformation of 1941, “Chief Justice Stone did
120
Id. at 33–35.
Id. at 35–36.
122
Walker et al., supra note 12, at 362. The Justices’ greater reliance on law clerks,
including their increasing number, is undoubtedly relevant to the rise of separate opinions, if only because it became easier for Justices to produce them. See also Paul R. Baier,
The Law Clerks: Profile of an Institution, 26 VAND. L. REV. 1125, 1133 (1973) (noting the
increase in law clerk hiring inaugurated by Chief Justice Stone). But with respect to the
increase in internal division, law clerks are best understood as a second-order factor and
not a strong causal force.
123
Walker et al., supra note 12, at 383 (citing S. Sidney Ulmer, Exploring the Dissent
Patterns of the Chief Justices: John Marshall to Warren Burger, in JUDICIAL CONFLICT AND
CONSENSUS: BEHAVIORAL STUDIES OF AMERICAN APPELATE COURTS 53 tbl. 2.1 (Sheldon
Goldman & Charles M. Lamb eds., 1986)).
121
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it.”124 But the conclusion is too simple. In the relevant period, the
Court experienced extraordinarily rapid turnover: Roosevelt appointed Hugo Black in 1937, followed by Stanley Reed in 1938, Felix
Frankfurter and William O. Douglas in 1939, Frank Murphy in 1940,
and James Byrnes and Robert Jackson in 1941, when Stone became
Chief Justice. Between 1937 and 1941, the Court was a radically transformed tribunal, with only one holdover member in addition to Stone
(Owen Roberts, appointed in 1930).125 As I have noted, the transformation deepens the puzzle. It might not have been anticipated that
there would be a sudden outbreak of concurrences and dissents with
effectively eight Roosevelt selections, sitting with Justice Roberts. Appointment by the same President should dampen disagreement, or so
it might be thought. Justices with similar views might not be expected
to reject a norm of consensus, and they might be expected to agree in
fact, whatever the prevailing norm with respect to public expression of
disagreement.
Indeed, it might well be questioned whether and when a Chief
Justice is a necessary or sufficient condition for the transformation. If
a norm in favor of consensus is well entrenched, and if most of the
Justices are acculturated and committed to it, it might be doubted
whether a new Chief Justice could significantly alter it. If, for example, Stone had been Chief Justice in 1891, 1901, 1911, 1921, or 1931, a
large-scale shift probably would not have occurred; the other members of the Court might well have resisted any effort to inaugurate
such a shift. And if Hughes had been Chief Justice in 1941, it is at
least worth wondering whether he would have been able to prevent at
least some kind of change. In this light, we might consider another
hypothesis, which is that the new Justices were uninterested in maintaining the old norm, and hence that any Chief Justice would have
had real difficulty in doing so. On a strong version of the “new
Justices” hypothesis, Chief Justice Stone was neither necessary nor sufficient for the shift. On the weak version of the same hypothesis,
Chief Justice Stone was necessary, but he was not sufficient.
The key point here is that the new Justices, above all Frankfurter,
favored a more academic atmosphere, in which Justices would develop competing views and ultimately feel free to express them.126
124
This is a potential reading of Walker et al., supra note 12, though their presentation
has a great deal of subtlety.
125
See Corley et al., supra note 12, at 29; Members of the Supreme Court of the United States,
SUP. CT. OF THE U.S., http://www.supremecourt.gov/about/members.aspx (last visited
Mar. 22, 2015) [hereinafter Members of the Supreme Court of the United States].
126
See Walker et al., supra note 12, at 374 (“[T]he backgrounds of [the associates on
the Stone Court] were not such that they would naturally value the practice of deferring to
the views of others on matters of public and legal policy. Like Chief Justice Stone,
Frankfurter, Douglas, and Rutledge had devoted the bulk of their careers to university
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Consider Frankfurter’s remarkable words, circulated to one of his
colleagues:
Just because we agree in the result . . . and because no immediately
important public issue is involved by our different approaches in
reaching the same legal result, it is at once interesting and profitable to discuss the underlying jurisprudential problem. And so I venture to make some observations on your opinion, I hope in the
same spirit and for the same academic purpose as I would were I
writing a piece as a professor in the Harvard Law Review.127
In a Memorandum for the Conference, Frankfurter wrote that while
“Unanimity is an appealing abstraction,” it is also true that “a single
Court statement on important constitutional issues and other aspects
of public law is bound to smother differences that in the interests
of candor and of the best interest of the Court ought to be
express.”128
In terms of his desire for self-expression, Frankfurter may well
have been an extreme case—certainly in the early 1940s—but Douglas
had been a professor as well, and as the course of his career demonstrates, he was fully willing to speak on his own. Hugo Black was not
so different, and Jackson of course had a unique voice, which he was
hardly averse to using. Frankfurter, Douglas, Black, and Jackson also
had strong personalities, and as recent members of the Court, they
had not been fully socialized into a judicial culture that prized a norm
of consensus.129 Because of their relative youth and inexperience, we
might wonder whether they were likely to accept that norm lightly. At
least once Stone essentially unleashed them, they were likely to break
the norm down. We cannot say whether and to what extent they
would have done so without Stone, or whether and to what extent a
more directive Chief Justice, intent on preserving the longstanding
norm, might have been able to succeed. But we might want to conclude that the combination was a perfect storm.
This is a tempting conclusion, but it does run into serious empirical objection. From 1937 to 1940, a number of the new Justices sat on
the Court, but they did not show significant levels of independent
teaching . . . . Black, Byrnes, and Burton had come to the Supreme Court directly from the
United States Senate . . . . Roberts had come from private practice, and Jackson, Murphy,
and Reed had been high ranking Justice Department attorneys.”).
127
Letter from Justice Felix Frankfurter to Justice Hugo Black (Dec. 15, 1939), quoted
in Corley et al., supra note 12, at 40.
128
O’Brien, supra note 78, at 107–08 (citation omitted) (internal quotation marks
omitted).
129
See generally Walker et al., supra note 12, at 374 (discussing the experiences of the
Justices on the Stone Court).
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opinion writing.130 Consider Table 2,131 showing the percentage of
cases each Term in which a new Justice wrote a dissenting opinion,
from 1937 to 1942:
TABLE 2. DISSENT RATES OF ASSOCIATE JUSTICES, BEFORE
STONE BECAME CHIEF JUSTICE
Pre-Stone Terms
AND
AFTER
Stone Terms
Justice
1937
1938
1939
1940
1941
1942
Black
10%
12%
3%
9%
14%
16%
Reed
4%
1%
5%
9%
12%
Frankfurter
2%
2%
1%
11%
14%
Douglas
1%
3%
9%
19%
16%
4%
12%
18%
Murphy
Black, Douglas, and Frankfurter eventually turned out to be especially frequent dissenters, but their propensity to write separately did
not emerge until Stone became Chief Justice.132 The same is true of
Reed and Murphy.133 From the data, it does appear that Stone was a
necessary condition for these and other Justices to write separately.
We cannot exclude the possibility that eventually they would have
started to do so. But with this evidence, it seems that an amenable
Chief Justice—a norm entrepreneur in his own way—might well have
been an essential condition for the transformation of 1941. The
strong version of the “new Justices” hypothesis does not fit the facts,
but we cannot exclude the possibility that the weak version is correct.
3. The Judiciary Act of 1925
It makes sense to distinguish between a court that is required to
hear a large number of cases, including easy ones, and a court that has
control over its own docket and could limit itself to difficult questions.
We would expect to see far more consensus within the former court
than within the latter. Other things being equal, a court that hears a
large percentage of easy cases will both have and show less division
than a court that hears a large percentage of hard cases.
130
Cf. id. at 378 (“Between 1936 and 1940, the associates who would later staff the
Stone Court cast dissenting votes at lower rates than expected.”).
131
EPSTEIN, supra note 23, at 250–55 tbl.3-2 (total number of cases each Term);
PRITCHETT, supra note 12, at 35–41, tbls.IV–IX (number of dissenting votes by each Justice
in each Term).
132
See Walker et al., supra note 12, at 384.
133
See id.
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For much of its history, the Supreme Court lacked control over its
docket, but the Judiciary Act of 1925134 eliminated mandatory appeals
and gave the Court its modern authority over the cases that it hears.
As a result, the Court could focus on the difficult cases and decline to
deal with the straightforward ones, on which agreement would be
standard.135 We might well expect that after the enactment of the
Judiciary Act of 1925, there would be a significant shift in the direction of division, because the Court would, by hypothesis, be dealing
with a much larger percentage of hard cases. Actual agreement would
be replaced by internal dissent. In an illuminating discussion, Pamela
C. Corley et al. insist that the establishment of the discretionary
docket was “a key external development that helped usher in a new
era of dissensus.”136
This is a tempting explanation, and it might provide part of the
picture, but there are at least three reasons to think that it is inadequate. First, there was disagreement in the earliest periods of the
Court, and as we have seen, a norm of consensus was required to reduce its public expression.137 Second, an investigation of the docket
books of Chief Justice Waite, from the period 1874 through 1888,
reveals substantial (private) disagreement within the Court.138 Apparently, the cases were not so easy that the Justices could readily
agree.139 Nonetheless, norms in favor of consensus ended up squelching public disclosure of their disagreements.140 Third, there was a significant lag between enactment of the Judiciary Act and the
transformation of 1941.141 Because the relevant patterns were not
much changed between 1925 and 1940, we cannot say that the Act was
sufficient to produce the new patterns. As Walker et al. put it,
“[s]imply stated, a radical jump in dissent following 1927 is not evident. Dissent rates did not begin their major upward move until the
early 1940s.”142
None of these points deny that the Judiciary Act might have contributed to the new patterns. History is run only once, so we cannot
know for sure, but without the Act, the post-1940 Court might have
134
Ch. 229 43 Stat. 936 (1925).
136
Id. at 28.
137
See supra notes 83–93 and accompanying text.
138
See Epstein et al., supra note 33, at 366–67 fig.2 (showing that although 9% of reported decisions for the period 1874 through 1887 contained at least one dissent, 40% of
votes garnered one or more dissenting vote in the conference).
139
See id. at 367–68 (rejecting the “easy-case explanation of unanimous opinions”).
140
See id. at 376 (concluding that “justices of the nineteenth (and perhaps into the
twentieth) century did seem to hide their private disagreements from the public, that a
norm of consensus did, in all likelihood, exist”).
141
Walker et al., supra note 12, at 365–66.
142
Id. at 366.
135
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been able to agree in a significantly higher percentage of cases. Perhaps an actual consensus would have been found, and no norm would
have been necessary. Nor can we rule out the view that the Act was a
necessary condition for the new patterns. But because disagreement
was common (but not expressed publicly) before the Act, and because
the norm of consensus persisted for well over a decade after the Act
became law, it is not an adequate explanation of what began to happen in 1941.
4. The Case Mix
It is reasonable to speculate that some areas are more likely than
others to produce a consensus within the Court. In highly technical
areas, not raising questions about fundamental values, Justices might
not care enough to produce separate concurrences or even dissents—
the effort might not be worth incurring.143 When the stakes seem
large and the cases have historic importance, it might be worthwhile
to write on one’s own. Producing a separate opinion has a cost, and a
recurring question is whether that cost is worthwhile. In answering
that question, the nature of the case is highly relevant.144
We might speculate that in the 1940s, the Court started to hear
different kinds of cases, and those cases were more likely to produce
dissents. But a moment’s reflection suggests that the speculation is
unlikely to provide the entire picture, or even much of it. In the
1920s and 1930s, the Court was hearing some of the most heated constitutional disputes in the nation’s history. What is the evidence that
the Court would suddenly start to resolve, in the 1940s, a set of cases
that produced unprecedented divisions within the Court, and that
suddenly prompted Justices to write more regularly on their own?
There is no evidence that mixes in the cases produced the change in
1941. Starting in that year, the very issues that had produced a consensus under Chief Justice Hughes produced dissents under Chief
Justice Stone.145 The best conclusion is that norms themselves began
to shift and that changes in the relevant issues were immaterial.
A more specific suggestion might be that in the late 1930s and
early 1940s, economic issues receded in number and importance, and
that civil rights and civil liberties cases started to became more common. But here too the speculation runs into an evident problem: economic issues seemed to split both the country and the Court in the
143
On the relevance of effort to judicial opinion writing, see EPSTEIN, supra note 100,
at 255–264 (discussing reasons why judges forego writing separately even when they have
disagreements with the majority decision).
144
See id. at 134–35 & tbl.3.13, 144 (showing that the ideological direction of a lower
court’s ruling will have a significant effect on whether a decision is unanimous and that the
type of case will also affect a judge’s decision to reverse a lower court decision).
145
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1930s, and there is no reason to think that such issues would be peculiarly likely to yield to a norm of consensus. Statistical analysis supports this view: in the decades of the 1930s and 1940s, there is no
relationship between the decline of consensus and the rise of civil
rights and liberties issues.146
5. Protocols
Some people have attributed the transformation of 1941 to
changed protocols within the Court.147 In a highly illuminating discussion, G. Edward White notes that “[a]s late as the 1940s, the official
United States Reports only identified the author of the ‘opinion of the
Court’ and those Justices who either filed concurring or dissenting
opinions or who had themselves identified as either concurring in the
majority result or dissenting.”148 It was not until 1947 that the Court
adopted the “current practice of listing the votes of all the Justices
who participated in a case in the headnote to that case in the United
States Reports.”149 White adds that after “the adoption of that protocol,
silent acquiescence became a rare phenomenon.”150
In addition, and relatedly, the Court began to circulate all opinions in advance.151 White urges that in part because “all Justices who
had joined an opinion of the Court were known,”152 the Court members became more likely to “want to see the language of draft majority
opinions before ‘signing on.’ ”153 In White’s account, this new protocol “invited concurring and dissenting opinions.”154
The two protocols undoubtedly did matter, but for several reasons, they cannot account for what happened in 1941. First, they occurred in 1947—fully six years after the new patterns emerged.
Second, the new protocols did not develop on their own; they were
hardly an external shock. On the contrary, they were produced by the
changing preferences of Chief Justice Stone and his colleagues.155 In
that sense, they are better characterized as a product of the transformed Court than as a cause of the transformation. Third, it is most
146
Stacia L. Haynie, Leadership and Consensus on the U.S. Supreme Court, 54 J. POL. 1158,
1166 (1992).
147
See White, supra note 79, at 1502–10 (arguing that “protocol changes . . . have
created a whole new dimension to the disposition of cases”).
148
Id. at 1503.
149
Id. at 1503–04.
150
Id. at 1504.
151
Id. at 1504–05.
152
Id. at 1505.
153
Id.
154
Id. at 1506.
155
For discussion of Chief Justice Stone’s preferences, see supra notes 113–19 and
accompanying text. For discussion of the preferences of other Stone Court Justices, see
supra notes 126–28 and accompanying text.
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doubtful that if the two protocols had been changed in 1850 or 1900,
there would have been a significant problem for the consensus norm
or for the idea of silent acquiescence. In the earlier periods, Justices
had their own convictions and remained silent, in large part on the
view that they were willing to acquiesce.156 There is no reason that
silent acquiescence could not occur if the Justices had regularly seen
and studied the opinions in advance.
6. Legal Realism and the Nature of Legal Reasoning
It might be thought that the norm of consensus broke down in a
period that reflected the power of legal realism: to put it crudely, the
view that legal interpretation inevitably involved judgments of policy
and principle, and that the law could not simply be “found.”157 When
law was taken to be objective—it might be thought—Justices would be
especially inclined to suppress their own dissent, on the theory that
the majority view must be correct, or at least must be taken as such.
But when the law seemed to reflect more personal judgments of policy
and principle, the argument for self-silencing might seem far weaker.
The historian David O’Brien contends that in the late 1930s and early
1940s, the new Justices were much affected by arguments about the
indeterminacy of the law. According to O’Brien, the post-New Deal
Justices, having been schooled in legal realism, “virtually all tended to
increase their dissent and concurring behavior during their time on
the bench.”158
The speculation is reasonable in the abstract, but it does not fit
the data well. Recall that the post-New Deal Justices were fairly silent
before 1941.159 Legal realism was not enough to ensure that they
would express their separate views in 1937, 1938, 1939, or 1940, when
their voting patterns fit the pattern for the period from 1800.160 More
fundamentally, internal disagreement about the law was common well
before the birth of legal realism.161 The norm of consensus, strongly
challenged by Jefferson,162 was necessary in the face of those differences. It is hard to defend the idea that in pressing for that norm,
Chief Justice Marshall and his successors had some sort of jurisprudential commitment to legal formalism. When the Justices suppressed
156
See supra notes 83–93, 137–38 and accompanying text.
See AMERICAN LEGAL REALISM 3–7 (William W. Fisher III et al. eds., 1993) (discussing Oliver Wendell Holmes, Jr.’s influence on the realist movement).
158
O’Brien, supra note 78, at 105.
159
See supra Table 2.
160
Compare id., with supra Part I.A.
161
See Epstein et al., supra note 33, at 367 (finding that the rate of dissents in conference votes for the period from 1874 through 1887 are similar to the rate of dissent of the
Rehnquist Court); see also supra notes 90–92.
162
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their disagreements, it was not because they believed that the law was
determinate, but because they thought that it was important, valuable,
or appropriate for them to offer a united front.163 One of Marshall’s
concerns was legitimacy;164 there is no evidence that he favored unanimity because of some kind of theoretical belief about the nature of
law.
C. Why Have the Patterns Been Relatively Stable After 1941?
How do we explain the relative consistency of the relevant patterns over more than six decades? It should be clear that for those
patterns to persist, two conditions are necessary: First, the level of actual disagreement must remain relatively constant. Second, the
norms that govern the expression of disagreement must remain relatively constant as well. Let us begin with actual disagreement.
1. Actual disagreement. A potential explanation is that both Democratic and Republican Presidents appoint Justices, and unless one
party dominates the presidency for a sustained period, the Court will
be predictably divided between Democratic and Republican appointees—hence a significant amount of division, resulting in dissents,
concurrences, and 5-4 splits. This explanation is especially tempting if
we focus on the period since 2009, when the Court has included five
Justices appointed by Republican Presidents165 and four appointed by
Democrats.166
The difficulty with this explanation is that comparable levels of
disagreement can be found regardless of whether the Court has consisted of a nearly even division of Democratic and Republican appointees, or whether it has consisted largely of appointees from Presidents
of a single political party. As we have seen, the modern patterns were
born in a period in which the Court was dominated by Democratic
appointees.167 And for most of the last three decades, the Court has
been dominated by Republican appointees. In 1981, the Court had
two Democratic appointees (Thurgood Marshall and Byron White)
and seven Republicans (William Brennan, Harry Blackmun, John Paul
Stevens, Warren Burger, Lewis Powell, Sandra Day O’Connor, and
John Paul Stevens). In 2001, there was a similar 7-2 split in favor of
163
See Epstein et al., supra note 33, at 365 (noting that the desire to present a united
Court to the country was thought to enhance the Court’s standing by Chief Justice
Marshall, and later by Chief Justice Hughes).
164
See id.; O’Brien, supra note 78, at 92 (“Marshall believed that unanimous decisions
would build the Court’s prestige and legitimacy.”).
165
John Roberts, Clarence Thomas, Antonin Scalia, Anthony Kennedy, and Samuel
Alito.
166
Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
167
See supra note 30.
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Republican appointees.168 The percentage of 5-4 splits cannot be
shown to have declined when Presidents of a single party have been
able to select a large majority of the Court’s members.169
A related explanation is that since the 1940s, the Court has often
been evenly divided on ideological grounds, in part because Republican Presidents have made some liberal or moderate choices (whether
intentionally or by mistake). There is no question that William
Brennan (an Eisenhower appointee) and Harry Blackmun (a Nixon
appointee) showed quite liberal voting patterns.170 Many Republicans
were disappointed by Stevens (a Ford appointee) and David Souter
(appointed by George H.W. Bush).171 Perhaps the relative consistency of internal divisions is a product of persistent ideological splits
within the Court.
There is something to this explanation, but it is not adequate. To
see why, consider a thought experiment. Let us imagine that over the
next decade, the Court shifts significantly to the right. Suppose that
the only two retirements come from Justices Breyer and Ginsburg, and
that they are replaced by people who tend to agree with Justices Scalia
and Thomas. In that event, the Court’s center of gravity would shift
dramatically, with an apparent “bloc” of six conservatives (Scalia,
Thomas, Roberts, Alito, and the two new members). Should we expect to see a sharp reduction in internal divisions?
The answer is not necessarily, and for one reason: lawyers and
lower court judges are alert to the composition of the Court. If the
Court shifts in any particular direction, we will almost certainly see a
very different set of rulings in the lower courts, whose judges are most
unlikely to issue decisions that are overwhelmingly likely to be reversed. The central point is that the cases that the Court hears will
consist, in large part, of issues that are difficult not in the abstract, but
in light of the Court’s particular composition at the time. It follows that in
the modern era, a significant level of (actual) internal disagreement is
highly likely to persist, and that unless the Justices adopt a norm in
favor of consensus, any Supreme Court will probably seem divided in
a significant number of important cases. The reason is that in a hierarchical legal system, the Court will end up hearing disputes that are
168
See Supreme Court Nominations, Present–1789, supra note 30.
Compare id., with supra Figure 13.
170
See EPSTEIN ET AL., supra note 100, at 111 tbl.3.4 (ranking Justices from most to least
conservative by three measures).
171
See id. at 111 tbl.3.4, 113 (noting Stevens and Souter’s liberal voting patterns even
though they were appointed by Republican Presidents).
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likely to split its current members—and this is true even if their approach to the law, or their ideology, changes radically over time.172
2. Expressed disagreement. Why has the norm itself remained relatively stable since 1941? A full account might well have to distinguish
among periods; the persistence of the norm in the 1980s might not
have the same explanation as the persistence of that norm in the
1990s or 2000s. To investigate such questions, a detailed historical
account might well be necessary, but the simple and most general answer is that the Justices have not had a sufficient motivation to alter it.
The question is what individual Justices prefer. From their standpoint, the costs of returning to the pre-1941 norm would apparently
be high, because the result would be a significant degree of self-silencing. Of course, those costs might be worth incurring if the Justices
also had a high degree of “effort aversion.”173 Recall that on one account, the early triumph of the norm on the Marshall Court had
something to do with such aversion.174 But there is no reason to think
that any effort aversion would be sufficient to lead members of the
Court to favor a consensus norm.
It is certainly imaginable that a Chief Justice could produce some
movement in the direction of that norm. We lack direct evidence that
any Chief Justice has tried, in any serious or systematic way, to restore
such a norm, and in any case there is reason to wonder whether any
such effort would be likely to succeed. For over seventy years, Justices
have generally felt free to express their views, and any norm in favor
of self-silencing appears to have been weak (though we cannot exclude the possibility that it exists in some moderate form). With a
longstanding tradition in favor of the current patterns, a Chief Justice
would have to be both ambitious and exceedingly skillful if he sought
to move toward the pre-1941 norm. As noted, Chief Justice Roberts is
on record as favoring a reduction in separate opinions and an increase in unanimity,175 but from 2006 through 2012, he was unable to
produce any change in the relevant patterns.176 It remains to be seen
whether the evident increase in unanimity in the 2013 Term suggests
that he is having some success.
172
For a similar discussion, see Cass R. Sunstein, The Supreme Court Will Always Split 5-4,
BLOOMBERGVIEW (June 16, 2014, 8:03 AM), http://www.bloombergview.com/articles/
2014-06-16/the-supreme-court-will-always-split-5-4.
173
See EPSTEIN ET AL., supra note 100, at 31–47 (discussing the labor-market theory of
judicial behavior and the factors that influence a judge’s decision to write opinions).
174
See supra notes 97–100 and accompanying text (noting Justice William Johnson’s
belief that the “real cause” of silent acquiescence was to relieve some Justices of the need to
write).
175
See supra note 3.
176
See supra Part I.B and accompanying Figures.
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III
EVALUATING
THE
MODERN ERA
Expressed disagreement will have both benefits and costs. It is
important to see that from the standpoint of the individual Justice the
calculation may be very different from what it is from the standpoint
of society as a whole. To understand the judgments of individual
Justices, we need to know what they maximize.177 For example, some
Justices may not want to expend a great deal of effort, and hence “effort aversion” might lead them not to write separately (and to favor
and promote a norm of consensus).178 Other Justices might care
greatly about their reputations, perhaps their personal legacy, and if
they do, they will be more likely to stake out their own ground (and to
favor and promote a norm in favor of separate statements).179 For
that reason, self-expression may not promote social welfare, at least if
Justices do not give adequate consideration to the social costs of internal division. Justices also care about the development of the law as
such, which will motivate them to take social welfare into account, and
perhaps to treat it as the most important consideration.180 My analysis
here focuses principally on social welfare as such, rather than on the
calculus for individual Justices.
Let us start with benefits, signaled by Jefferson’s early complaint
and captured briefly in Justice Brennan’s suggestion: “Through dynamic interaction among members of the present Court and through
dialogue across time with the future Court, we ensure the continuing
contemporary relevance and hence vitality of the principles of our
fundamental charter.”181
A. The Benefits of Disagreement
If we disaggregate the principal benefits, they seem to fall in
three categories:
1. Future adjudication. With respect to benefits, the most important point is that a dissent might turn out to have desirable effects on
the future development of the law.182 Perhaps Justices will eventually
view it persuasive; it might provide a kind of lodestar for posterity.
177
See EPSTEIN ET AL., supra note 100, at 47 (“Ideology, legalism, pragmatism, strategy,
and effort aversion all enter as preferences in the judge’s utility function, with different
weights depending on the judge . . . and the particulars of the case.”).
178
Id.
179
See id. at 43, 48 (noting that “external satisfactions from being a judge, including
reputation . . . are positively related to the time devoted to . . . judicial . . . activities”).
180
See id.
181
Brennan, supra note 111, at 438.
182
The points made here apply to concurrences as well—certainly concurrences in
the judgment, but also concurrences that reflect a somewhat different orientation from the
majority opinion.
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Indeed, numerous dissents have become the law of the land.183 As
Justice Brennan wrote, a dissent “is offered as a corrective—in the
hope that the Court will mend the error of its ways in a later case.”184
In many cases, dissenters undoubtedly hope that their views will end
up producing such a corrective.
To evaluate this point in a disciplined way, it is necessary to focus
on two factors: the likelihood that a dissent will have that effect and
the value of the effect if it should occur. If the real goal is to alter the
course of the law, it is not worth producing a dissent if the chance of
alteration is zero. But even if the chance is relatively low, it might be
worth writing separately if the value of a change is extremely high.
These simple points help to explain the intuitive point that in cases of
great importance, where a Justice believes that the Court has made a
damaging and harmful mistake, the incentive to dissent is increased.
Even in the pre-1941 era, Justices appear to have produced dissents in
part for this reason.185 From the social point of view, a dissent has an
“expected value” in terms of effects on future Justices, and in some
cases, the expected value might be high.
We should distinguish here between two kinds of effects on future adjudication. In the most dramatic cases, the Court’s opinion is
actually overruled.186 In less dramatic cases, the Court’s opinion is
read narrowly, or at least not expanded. A powerful dissent might be
worthwhile if it has the latter consequence—indeed, a dissent might
be written specifically to have that consequence. Here as well, there is
an expected value in terms of benefits, and it might be high.
2. Congress. Even if a dissent is not likely to move a future Court,
it might influence Congress. 187 If a Justice signals that the Court has
erred and that the stakes are high, she might trigger legislative attention. 188 Here again, a prospective dissenter would do well to consider
both the probability that a dissent will have that effect and the value of
the effect if it should occur. In the abstract, it is reasonable to think
that legislators are significantly more responsive to results than to dis183
Prominent examples include Minersville School District v. Gobitis, 310 U.S. 586, 601
(1940) (Stone, J., dissenting); Olmstead v. United States, 277 U.S. 438, 471 (1928) (Brandeis,
J., dissenting); Abrams v. United States, 250 U.S. 616, 624 (1919) (Holmes, J., dissenting);
and Lochner v. New York, 198 U.S. 45, 74 (1905) (Holmes, J., dissenting); and Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Harlan, J., dissenting). For the total numbers, see infra note
219.
184
Brennan, supra note 111, at 430.
185
See supra note 183.
186
For numbers, see CONG. RESEARCH SERV., infra note 219 and accompanying text.
187
It could have similar effects on state legislatures, for which the analysis would be
essentially the same.
188
See Ginsburg, supra note 5, at 6 (explaining that her dissent in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 643 (2007) (Ginsburg, J., dissenting), is an example
of a dissent aimed “to attract immediate public attention and, thereby, to propel legislative
change”). Here as well, the point applies to separate concurrences as well as to dissents.
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senting opinions, and that dissents will, at most, create a modest increase in the incentive to correct what legislators would already see as
a mistake or an injustice. Justices who believe that separate opinions,
as such, will have large effects on Congress might be suffering from
optimism bias189 or the spotlight effect.190 But even if a dissenting
opinion increases the likelihood of a legislative response only modestly, its expected value might be high.
3. The chastened majority? Even if a dissent has no influence on
future Justices or Congress, it might improve the majority opinion,
perhaps by ensuring that certain arguments are met with plausible
answers, or perhaps by convincing the Justices in the majority to scale
back their opinion or to move it in different directions.191 In these
ways, a dissent can fortify the participation of the litigants and also
improve both prevailing opinion and the ultimate result.
Of course it is true that having done that work, the author of a
dissenting opinion might choose not to publish what he or she
wrote—but the effects of a dissent might well depend on a credible
commitment to publish. We lack systematic evidence with respect to
the claim that dissenting opinions improve or even materially alter
opinions of the Court. For obvious reasons, such evidence would be
exceedingly difficult to compile. But it is more than plausible to think
that both the possibility and the actuality of dissenting opinions have a
beneficial effect on the Court’s majorities.
Those who object to internal division are likely to contend that
these various benefits are overstated. But their principal concern,
traceable to Marshall’s era, involves the costs of division. Like the
benefits, the costs appear to fall in three different categories; each of
them requires extended treatment.
B. Credibility, Legitimacy, and “Monolithic Solidarity”
In calling for a “refocus on functioning as an institution,” Chief
Justice Roberts said that with its post-1941 patterns, the Court risked a
loss of “its credibility and legitimacy.”192 As he saw it, internal divi189
See TALI SHAROT, THE OPTIMISM BIAS: A TOUR OF THE IRRATIONALLY POSITIVE BRAIN,
at xv (2011) (defining optimism bias as “the inclination to overestimate the likelihood of
encountering positive events in the future and to underestimate the likelihood of experiencing negative events”).
190
See Thomas Gilovich et al., The Spotlight Effect in Social Judgment: An Egocentric Bias in
Estimates of the Salience of One’s Own Actions and Appearance, 78 J. PERSONALITY & SOC.
PSYCHOL. 211, 211 (2000) (defining the spotlight effect as a phenomenon in which
“[p]eople tend to believe that the social spotlight shines more brightly on them than it
really does”).
191
See Ginsburg, supra note 5, at 3 (“My experience teaches that there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and
clarify her initial circulation.”).
192
Rosen, supra note 3.
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sions could threaten the Court’s image in the eyes of the public.
Learned Hand saw things similarly, writing that a dissenting opinion
“cancels the impact of monolithic solidarity on which the authority of
a bench of judges so largely depends.”193
1. Hypotheses. Whenever the Court is not unanimous, we might
speculate that its credibility is at risk because a competing view will be
offered, and it might be expressed vigorously. Brown v. Board of Education was famously unanimous, and Chief Justice Warren worked exceedingly hard to ensure that the nation would see that the Justices
were in total agreement.194 In his view, a divided Court would sacrifice its legitimacy in an area where legitimacy was crucial.195 And it is
hardly implausible to think that from the standpoint of legitimacy, 5-4
divisions are especially troubling, because they suggest that with a
change of a single vote, fundamental issues might have been resolved
differently. The problem might well be aggravated if the division occurs along predictable political lines. Bush v. Gore196 is perhaps the
most extreme example—on this count, the anti-Brown—because the
Court’s majority consisted solely of Republican appointees, and because the ultimate result was widely seen as highly politicized.197
This concern is actually a hypothesis, to the effect that internal
divisions weaken credibility. The hypothesis raises empirical questions: Are 5-4 decisions genuinely less credible than unanimous decisions, and if so, to what extent? Are 5-4 decisions less credible than
7-2 decisions, or than 8-1 decisions? In principle, those questions
should be answerable. Brown was indeed unanimous, but its unanimity did not come close to quelling public opposition.198 Perhaps the
opposition would have been even worse if the Court had been divided—but perhaps not.
Consider a competing hypothesis: the credibility of Supreme Court
decisions does not turn on the extent of the division within the Court, but
instead on the relationship between those decisions and the prior convictions of
relevant members of the public. Under this hypothesis, everything depends on whether the Court’s decision is consistent with people’s
prior convictions. If the Court ruled that the Constitution gives the
Environmental Protection Agency the power to arrest and imprison
people at its whim, the public would be most unlikely to find the deci193
LEARNED HAND, THE BILL OF RIGHTS 72 (1958).
See generally RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF
EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY 681–702 (rev. and expanded ed.
2004) (discussing how Warren worked to achieve a unanimous opinion).
195
Id. at 682–83.
196
531 U.S. 98 (2000).
197
See BUSH V. GORE: THE COURT CASES AND THE COMMENTARY 1–2, 5–6 (E.J. Dionne Jr.
& William Kristol eds., 2001).
198
See KLUGER, supra note 194, at 713–14 (citing examples of opposition to Brown).
194
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sions credible and legitimate, even if the Court turned out to be unanimous. If, by contrast, the Court issued a ruling that is broadly
acceptable, and that fits with widespread convictions, the public will
not be much exercised whether its ruling is 9-0 or 5-4. And if the
public is itself divided, the credibility of the Court’s decision will depend on the relationship between those divisions and that decision. If
the Court rules in favor of gun control, those who support gun control will find the decision credible, and those who reject gun control
will not. On this view, people’s prior convictions are what matter, not
vote counting.
Existing evidence remains sparse, but it tends to support this hypothesis. Larger majorities and unanimity do not seem to increase
public acceptance of the Court’s decisions. A 2009 study explored
people’s reaction to the controversial decision in Kelo v. City of New
London;199 the presentation of the case was manipulated to change the
size of the majority (which was actually 5-4). The results showed that
the level of internal consensus had little effect on people’s views.200
In a later study, Salamone found that “reaction to judicial consensus is
dependent on the ideological salience of the issue involved” and that
“the public is unmoved by the majority size in highly salient decisions.”201 It is only in “cases with low salience” that large majorities
have an effect on public attitudes.202 The distinction between “high
salience” and “low salience” has a close connection to the question
whether people have clear antecedent convictions. When a case is
highly salient, it is because it raises issues that trigger strong concerns.
When it has low salience, it is because it does not much matter to
them, and hence their antecedent convictions are weak.203
To say this is not to insist that in highly salient cases, internal
divisions do not matter at all. The existing evidence does not exclude
the possibility that a unanimous decision can increase legitimacy and
reduce concerns about politicization within the Court. Some people
might well seize on any kind of dissent to show that their disagreement is reasonable, and a 5-4 decision (with a predictable division
along ideological lines) might seem, to some citizens, less convincing
than a unanimous or lopsided vote. Certainly a dissenting opinion
can serve as a rhetorical resource for those who object to a decision.
In the future, we should be able to obtain more evidence on the
question whether 5-4 decisions are, in fact, less credible than other
199
545 U.S. 469 (2005).
Michael Salamone, Supreme Court Unity and Public Opinion: An Experimental Study 22
(Am. Political Sci. Ass’n Annual Meeting Paper, 2009).
201
Michael F. Salamone, Judicial Consensus and Public Opinion: Conditional Response to
Supreme Court Majority Size, 20 POL. RES. Q. 320, 320 (2013).
202
Id. at 320–21.
203
See id. at 324 (detailing the distinction).
200
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kinds of decisions. To be sure, we do not have randomized controlled
trials, enabling us to explore whether (for example) Citizens United,204
Heller,205 or National Federation of Independent Business v. Sebelius206
would have been less controversial if the Court had been undivided or
less divided. But an experimental design could easily explore the
question whether the public would receive these decisions, or related
ones, differently with larger majorities. At the present time, the idea
that 5-4 decisions pose a serious problem of credibility or legitimacy
remains an unproven hypothesis.
2. Normative considerations. The second problem is normative.
Suppose that a 5-4 decision is, in fact, less credible, and less likely to
be perceived as legitimate, than a 9-0 decision. Does that fact suggest
that Justices should decline to express their doubts and join an opinion that they believe to be wrong? The answer is far from obvious.
On the one side is the cost of self-silencing: failing to provide the public with information that could inform its judgment about the underlying issues and perhaps affect legislation, while also failing to provide
posterity—including other Justices—with that information as well.
On the other side is the benefit: insulating the Court from criticism
that it would otherwise receive. But how much of a benefit is that?
Such insulation might well be unwarranted because there is, by hypothesis, internal disagreement on the Court. Is it appropriate to insulate the Court from criticism, and from a challenge to its credibility,
that would come from exposing that disagreement to public view?
The answer is by no means clear.
We might want to make a distinction between a new Court, initially struggling to establish its legitimacy, and a Court whose essential
legitimacy is clear and not truly contested. For the former Court,
there might well be an argument for reducing the appearance of internal contestation. The same might also be said of an established
Court that is resolving a highly contested question. As noted, Brown v.
Board of Education207 is the most famous example; Chief Justice Warren
believed that a divided Court would fuel opposition.208 As also noted,
many people lamented the 5-4 division in Bush v. Gore, contending
that the split vote suggested a high degree of politicization on questions of constitutional law.209 In some cases, unanimity might reduce
that concern—though as noted, this is an empirical question on
204
Citizens United v. FEC, 558 U.S. 310 (2010).
District of Columbia v. Heller, 554 U.S. 570 (2008).
206
132 S. Ct. 2566 (2012).
207
347 U.S. 483 (1954).
208
See KLUGER, supra note 194, at 686 (“Earl Warren did not want dissents or concurrences if he could help it. He wanted a single, unequivocating opinion that could leave no
doubt that the Court had put Jim Crow to the sword.”).
209
Many examples can be found in BUSH V. GORE, supra note 197.
205
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which it is difficult to have much confidence. In general, we lack evidence to justify the belief that the post-1940 patterns have raised serious questions about the Court’s legitimacy and credibility.210
C. Politicization
A version of the concern about credibility, requiring separate discussion, would focus not on division as such but on predictable division along political lines. On this view, the real problem is that 5-4
divisions separate “the liberals” from “the conservatives,” with identifiable “swing votes.” On one view, the public cannot believe in the
neutrality of law, or even in the rule of law, if such divisions are
persistent.211
This objection also raises empirical questions. To what extent is
“the public” aware of persistent divisions, and to what extent, and
how, is it troubled by them? We lack informative evidence on such
questions. It is plausible to think that prominent members of the public, and especially Court-following elites, are aware of the relevant patterns. The 5-4 division in Bush v. Gore, with a split along ideological
lines, created serious concern in part for that reason. We could speculate that a unanimous decision, or an 8-1 decision, would have given
more people the impression that the law, understood neutrally, compelled the result.
Suppose that it is true that when the Court is persistently divided
along evidently ideological lines, sufficient numbers of people lose
faith in a certain conception of the rule of law. What follows? It
might be that that conception is unjustified—that when a certain
number of the cases that the Court hears are genuinely difficult, and
cannot be resolved by reference to “the law,” which means that a
Judge’s views—not about politics narrowly conceived, but about interpretive method, and perhaps about the right conception of equality
210
There are interesting comparisons here with the legislative and executive branches.
Within Congress, there is no norm in favor of silent acquiescence, at least not on controversial issues; votes are publicly recorded and debates are substantive and often heated. In
general, no one argues for a norm of consensus. (Compare, however, the idea of “unanimous consent,” which allows some confirmation votes, and the enactment of some legislation, to occur with a roll call vote.) Within the executive branch, the practice is the
opposite. If, for example, the Secretary of Transportation and the Director of the National
Economic Council disagree with the President on some question, their views are unlikely
to be made public, and they might well defend the President’s decision even though they
disagree with it. Within the executive branch, silent acquiescence is the rule, perhaps because of an understanding that the President is authorized to make the ultimate decision,
and any public expression of disagreement would be a form of insubordination. For the
constitutional background, see Myers v. United States, 272 U.S. 52, 132–35 (1926).
211
See, e.g., Linda Greenhouse, Another Kind of Bitter Split, N.Y. TIMES, Dec. 14, 2000, at
A1, reprinted in BUSH V. GORE, supra note 197, at 296–97 (noting the Bush v. Gore decision
“left behind an institution that many students of the court said appeared diminished, if not
actually tarnished”).
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and liberty—will indeed matter.212 If so, divisions are inevitable.
Outside of highly unusual contexts, it is hard to see why the dissatisfaction of some observers should lead the Court to pretend that it is
unanimous.
D. Stability and Certainty
Stability in judge-made law can be important, in part because
those affected by law can benefit from a high degree of certainty. On
this view, the problem with divided rulings is that they are fragile.213 It
might be urged that the pre-1941 situation was better precisely because the Court’s rulings were more fixed and firm. Note that this
objection turns into a vice what supporters of dissenting opinions see
as a virtue: the possibility that a dissenting opinion will eventually
move the law.214
This concern can take three different forms: The first is that
when the Court is divided, its decisions are more likely to be overruled. The second is that when the Court is divided, its decisions are
more likely to be cabined, perhaps limited to their facts, and hence
the law is more likely to take a meandering and unpredictable path.
On this view, split rules will ensure a kind of case-by-case minimalism,
not necessarily when they are issued, but as subsequent Courts work to
narrow them. The third concern is that litigants and lower courts are
less likely to know what the law is; they are more likely to be confused.
All of these concerns raise empirical questions.
1. Overruling? With respect to the first, we have some quantitative
evidence, and it does support the claim that when the Court is sharply
divided, its decisions are more fragile.215 One study, analyzing data
from 1946 to 1995, finds that a precedent is more likely to be overruled if it is the product of a one-vote margin decision; a precedent is
less likely to be overruled if its decision coalition was unanimous; and
the larger the number of concurring opinions published with a precedent, the greater the chance it will be overruled.216 More specifically,
a minimum winning coalition increases the risk of overruling by
212
See RONALD DWORKIN, LAW’S EMPIRE 43–44 (1986) (arguing that lawyers and judges
often disagree about the meaning of the law); id. at 87–90 (discussing the influence of
interpretative methods on legal outcomes and how interpretative methods are influenced
by the contemporary legal environment).
213
See Walker et al., supra note 12, at 386–87 (noting “scholars, lawyers, and judges . . .
who suggest that dissents and concurrences serve a negative institutional function” reason
that “individual opinions may shake public confidence in the judiciary by bringing into
question the certainty of the law”).
214
See supra Part III.A.1.
215
THOMAS G. HANSFORD & JAMES F. SPRIGGS II, THE POLITICS OF PRECEDENT ON THE
U.S. SUPREME COURT 90–92 (2006).
216
James F. Spriggs, II & Thomas G. Hansford, Explaining the Overruling of U.S. Supreme
Court Precedent, 63 J. POL. 1091, 1104–05 (2001).
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53.6%, and a unanimous coalition decreases the risk of overruling by
46.9%.217 For each additional concurrence, the risk of the case being
overruled increases by 22.4%.218
These are large differences, but percentages should be taken with
many grains of salt. The Court overrules very few of its decisions, and
hence the risk that any particular decision will be overruled is exceedingly low. Even if the risk increased by 50% or more, it is still exceedingly likely not to be overruled. More specifically, the Court has, in its
history, overruled 1.2% of its decisions, and 1.7% of its 5-4 decisions.219 From the social standpoint, how meaningful is the relevant
increase in probability? We do not even know that the 5-4 division
causes the increase. It may be that 5-4 splits reflect the importance
and difficulty of the underlying questions, and hence that cases that
pose such questions would be more likely to be overruled even if they
were unanimous.
To evaluate this evidence, moreover, we would have to distinguish between 9-0 decisions that reflect actual agreement and 9-0 decisions that reflect silent acquiescence. A norm of consensus means
that dissenting Justices will generally join the majority, notwithstanding their private views, and do not express those views in public. But
they are nonetheless dissenters. An apparent 9-0 decision may be, in
reality, a 5-4 split. Would the Justices be less likely to overrule a secret
5-4 decision than a publicly expressed 5-4 decision? Perhaps so, but
the existing evidence does not enable us to answer that question.
2. Cabining? It is certainly plausible to think that when the Court
is sharply divided, the Court itself, or lower courts, are more likely to
read its opinion narrowly. Consider, for example, Bush v. Gore, which
has not produced a set of new equal protection cases or spawned doctrinal departures220—perhaps in part because of the internal division.
If we disapprove of a situation in which constitutional law moves in fits
and starts, with decisions that are limited to their facts, we might be
especially concerned about internal division. The problem of uncertainty is the foundation of that concern.
Here as well, however, we need to begin by asking a question
about the relevance of a norm of consensus: Are decisions that hide
secret divisions, in which Justices do not reveal their disagreement,
217
Id. at 1105.
Id.
219
CONG. RESEARCH SERV., THE CONSTITUTION OF THE UNITED STATES OF AMERICA:
ANALYSIS AND INTERPRETATION, S. DOC. NO. 112–9, at 2573–85 (Centennial ed., Interim ed.
2013).
220
See generally Richard L. Hasen, Bush v. Gore and the Future of Equal Protection Law in
Elections, 29 FLA. ST. U. L. REV. 377, 378, 386–92 (2001) (arguing “there are good reasons
for doubting that the Supreme Court majority intended anyone to take their equal protection holding seriously”).
218
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less likely to be cabined than decisions with publicly expressed divisions? Perhaps lower courts and litigants care about what is expressed, because that is all that they see—a point that may argue for
an increase in expressed unanimity. But within the Court itself, a division is a division, whether or not it is revealed to the public. For obvious reasons, it is not easy to study the question whether the Justices
are likely to read a decision narrowly if they are divided but do not
disclose that fact.
In terms of how the Court reads its own decisions, two questions
would seem to be central. The first is whether members of a majority—whether it is 5-4, 7-2, or 9-0—are ambivalent about the reasoning
and the result. The number of Justices who join the opinion may tell
us very little about that question. If the Justices are divided 5-4, and if
the members of the majority have issued a broad, declarative statement in which they have full confidence, there is not much reason to
think that the ruling will be read narrowly.221 The second question is
whether the composition of the Court changes over time. Changes in
the Court’s composition can of course lead to significant shifts in the
law.222
It is true that if one member of a 5-4 majority reads the decision
very narrowly, and joined it on that understanding, a degree of cabining is highly likely. But would things be different if the four dissenters
declined to express their views and thus made for a unanimous majority? It might be expected that with a norm of consensus, we would
have to distinguish between real 9-0 decisions and 9-0 decisions that
reflect silent acquiescence. Apparent 9-0 decisions, which are in fact
5-4 decisions, should produce the same future path as 5-4 divisions
that are publicly disclosed as such.
Suppose it is true that when the Court is publicly divided 5-4 or
when dissents are common, precedents are read more narrowly. Is
that a problem? As we shall soon see, some people favor unanimous
opinions precisely because they produce greater narrowness.223
Whether narrowness is a problem, or instead a kind of solution, depends on the context.
3. Uncertainty? Does a divided Supreme Court increase uncertainty? We can imagine extreme cases in which the answer is obvious.
If there is no majority opinion, and if six different Justices write separately, it might be exceedingly difficult to know what the law is. That
221
An arguable example is Kelo v. City of New London, 545 U.S. 469, 489–90 (2005).
For a set of illustrations, see Cass R. Sunstein, Why Does the American Constitution Lack
Social and Economic Guarantees? (Univ. Chi. Law Sch. Pub. Law & Legal Theory, Working
Paper No. 36, 2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id
=375622.
223
See infra Part III.E.
222
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is a genuine problem—the law cannot be certain if there is no opinion for the Court.224 But is there also uncertainty in the presence of
some number of concurrences and dissents, or with a 5-4 division?
The answer is by no means clear. We can easily imagine a 9-0
decision that leaves a great deal of uncertainty, perhaps because it is
vague and ambiguous, or perhaps because it is narrow and limited to
the particular facts. A decision that employs a multifactor balancing
test might well leave the law up for grabs, no matter how many Justices
agree to it.225 By contrast, a 5-4 decision might establish a clear, firm
rule, one that everyone understands. If, for example, the Court ruled
that the Constitution gives people the right to enter into same-sex
marriages, or does not protect commercial advertising, the law would
not be ambiguous, and people would have no need to guess. With
respect to certainty, the most important question is the nature of the
opinion and the judgment, not the number of Justices who sign it.
4. Normative questions. There is a normative question as well. Stability and certainty can be important, to be sure, but their importance
differs across areas, and in the abstract, any incremental instability
produced by 5-4 rulings need not be seen as decisive. Of course it is
true that some areas of law need to be settled, so that people can
organize their affairs, and it is acceptable if existing decisions are not
ideal in principle. But if such rulings are badly wrong, and do significant damage, there is a strong argument in favor of destabilizing
them. Indeed, a 5-4 division may itself be evidence that a decision
deserves continuing scrutiny.
The argument for stability and certainty rests on weak foundations. From the standpoint of those very goals, apparent unanimity
disguising internal division is not much better than a 5-4 ruling, and
the goals are themselves an ingredient in the overall analysis, and
hardly trump cards.
E. Minimalism
Judicial minimalists think that judicial decisions should be “narrow rather than wide,” in the sense that judges should answer the question at hand, and ought not reach out to answer other questions that
are not, strictly speaking, necessary for the decision.226 Minimalists
also want judicial decisions to be “shallow rather than deep,” in the sense
224
See, e.g., Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (2008) (upholding Indiana’s voter identification law without a majority opinion).
225
Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1182–87
(1989) (arguing balancing tests do not provide much guidance and resemble findings of
fact).
226
See CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME
COURT 10–11 (1999).
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that judges try to produce rationales on which people can agree even
if they disagree about foundational questions, or do not know what
they think about such questions.227 On one view, the Supreme Court
should aim for minimalism, on the ground that it reduces the costs of
decisions and the risks of error, and fits with the appropriate role of
federal judges in a democratic system.228
It is not clear, however, that Justices should embrace minimalism,
especially if they favor certainty;229 there is an unmistakable tension
between the two goals. To this extent, it is difficult to favor unanimous decisions on the ground that they increase certainty while also
favoring such decisions on the ground that they promote minimalism.
But suppose that Justices do embrace minimalism. If so, they might
be skeptical of divided Courts and approve of a norm that encourages
the Justices to find a rationale on which all can agree. Chief Justice
Roberts has pressed this particular point, urging that the “broader the
agreement among the justices, the more likely it is a decision on the
narrowest possible grounds.”230
To see his point, imagine that the Supreme Court were currently
governed by an unambiguous norm in favor of consensus. Such a
norm might well incline the majority in the direction of taking on the
concerns of the skeptics, producing narrow, shallow opinions. If the
Court could not issue an opinion without broad or universal agreement—if the skeptics had something akin to a veto power—width and
breadth would become far less likely. Some examples from history:
Instead of ruling that the Constitution protects a rule of one person,
one vote,231 the Court would be more likely to rule that any departures from that rule must have some kind of nonarbitrary justification.232 Instead of creating a broad right to choose abortion,233 the
Court might have struck down relevant state laws as unduly vague, or
as unacceptable insofar as they prohibited abortion in cases of rape
and incest.234 And indeed, the logic of Chief Justice Roberts’s view is
227
Id. at 11–14.
For competing views on that question, see id. at 241–243; Scalia, supra note 225, at
1178–85 (arguing for “the establishment of broadly applicable general principles” as opposed to “reading the ‘holding’ of a decision narrowly, thereby leaving greater discretion
to future courts”).
229
See Scalia, supra note 225, at 1178–79 (noting “a clear, general principle of decision” leads to greater uniformity and predictability in the law).
230
Chief Justice Says His Goal Is More Consensus on Court, N.Y. TIMES, May 22, 2006, at A16
(quoting Chief Justice John Roberts, Commencement Address at Georgetown University
Law Center (May 20, 2006)).
231
Reynolds v. Sims, 377 U.S. 533, 568–71 (1964).
232
Cf. id. at 588–89 (Stewart, J., concurring).
233
See Roe v. Wade, 410 U.S. 113, 162–64 (1973).
234
For an argument in favor of a narrow approach to the abortion question, at least
when the Court initially confronted that question, see Ruth Bader Ginsburg, Some Thoughts
on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 381 (1985) (ex228
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that he would approve of the direction toward greater narrowness and
shallowness.
It follows that for those who favor minimalism, there is a plausible
instrumental argument in favor of a norm of consensus. But even on
its own terms, the argument is not airtight. If such a norm is in play,
the question is whether the majority must accommodate the views of
the minority or whether the minority must instead surrender. By itself, the norm of consensus is agnostic on that question. If the norm
encourages the minority to surrender, then broad, deep rulings can
be expected even from unanimous courts—an outcome that is, from
the standpoint of minimalism, actually perverse.
The deeper problem is that minimalism should not always be favored.235 This is not the place to discuss that question in detail, but
the argument on behalf of minimalism depends largely on the costs of
decisions and the costs of errors.236 In some cases, narrowness is a
vice rather than a virtue because it leaves uncertainty and unpredictability and because a wider ruling would reduce both without introducing error.237 In some cases, depth is desirable because it gives a
clear sense of the grounds for the outcome,238 and offers a sound basis for future development. Minimalism is not an approach for all
times and seasons. It follows that even if a norm of consensus would
press the Court in the direction of minimalism, it is not clear that the
norm is desirable.
F. A Brief Accounting
These various considerations show that from the social point of
view, a division within the Court will have both benefits and costs. Improvements in the course of the law unquestionably count as benefits,
and separate opinions can lead to such improvements.239 But as a
general rule, a dissenting opinion or a 5-4 division is unlikely to lead a
future Court to overrule a prior decision, if only because the Court
rarely overrules itself.240 Perhaps an internal division and a public expression of disagreement can make the Court less likely to expand on
a contested ruling, but that conclusion is itself speculative.241 Moreoplaining “Roe ventured too far in the change it ordered,” thereby causing a reaction against
the trend toward more liberal abortion statutes).
235
Scalia, supra note 225, at 1178.
236
SUNSTEIN, supra note 226, at 47–50; cf. Louis Kaplow, Rules Versus Standards: An
Economic Analysis, 42 DUKE L.J. 557, 568–86 (1992) (providing an economic analysis of
whether legal commands should be promulgated as rules or standards).
237
See SUNSTEIN, supra note 226, at 54–60.
238
DWORKIN, supra note 212, at 42–43 can be understood as an extended plea for
depth.
239
See supra Part III.A.
240
See supra text accompanying note 219.
241
See discussion supra Part III.B.1.
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ver, the likelihood that a dissent, or a 5-4 division, will increase the
likelihood of congressional action is quite low.242 To be sure, even a
small increase in the probability of overruling, or of a congressional
response, might justify a dissent if the stakes are high and if the costs
of such a dissent are themselves low.243 And in many cases, the strongest arguments on behalf of separate opinions—both concurrences
and dissents—might well be that they can produce improvements in
the reasoning and the reach of the majority opinion.244
Separate opinions and internal divisions can have costs as well. If
a judgment lacks a majority opinion, there is likely to be a high level
of uncertainty. Decisions with 5-4 splits appear to be somewhat more
likely to be overruled. Divisions can increase instability.245 In some
cases, minimalism is indeed desirable; and on plausible assumptions,
unanimity breeds minimalism.246 But these points must be taken with
considerable caution. On inspection, the standard arguments against
separate opinions and internal divisions depend on empirical assumptions that are unlikely to hold true.
In particular cases, the various benefits and costs could be formalized into the foundation for an analysis of whether separate opinions
and internal divisions are undesirable. But the broader conclusion is
clear: as a general rule, a conscientious Justice ought not to silence
himself or herself for fear that the costs of a separate opinion will be
high. To be sure, the Court’s legitimacy might be at risk if it rules in
ways that deeply offend the American public or if large segments of
that public perceive themselves as consistent losers. But separate
opinions, as such, are unlikely to threaten the Court’s legitimacy, certainly not in specific cases and probably not even across a wide range
of cases.
CONCLUSION
My three goals here have been the following: to show that in an
important respect the Supreme Court has had two separate eras; to
explain the observed patterns; and to evaluate contemporary practice.
Before 1941, the Court operated by a norm of consensus. While there
were modest variations across time, the norm was essentially intact for
140 years. Starting in 1941, that norm broke down. With respect to
dissents, concurrences, and 5-4 decisions, the patterns established in
the early 1940s have remained remarkably constant over a long period
242
See supra note 219 and accompanying text.
See EPSTEIN ET AL., supra note 100, at 47.
244
See supra note 191 and accompanying text.
245
246
Cf. supra text accompanying note 230 (quoting Chief Justice Roberts’s comment
that broad agreements are related to narrow holdings).
243
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of time, including the service of forty Justices and six Chief Justices.247
For the most part, the year-to-year variations and the differences
across the six Chief Justices have not been statistically significant. The
longer time-scale trends have been both modest and gradual. The
dramatic increase in unanimity in the 2013 Term is an intriguing exception; it is too soon to say whether it signals a shift from the post1941 norm.
The best explanation for the transformation of 1941 focuses on
two developments: the elevation of Harlan Fiske Stone to the position
of Chief Justice in that year and the appointment of seven new Justices
to the Court between 1937 and 1941.248 If the new Chief Justice had
been insistent on maintaining a norm of consensus, he might well
have succeeded, especially in light of the weight of tradition. And if
Stone had become Chief Justice in a court dominated by members
who were accustomed to the old norm and who tended to favor it,
that norm might have been maintained. But Stone himself opposed
the norm, and he practiced his opposition. Other Justices turned out
to be willing and perhaps even happy to jettison the longstanding
practice.
In the post-1941 period, there is no evidence that the Justices
themselves have disapproved of the new norm, and it would not be
easy for a Chief Justice to seek to restore the old one. Hence the
patterns established in the early 1940s have remained relatively constant over time—with the interesting and still-puzzling exception of
2013.249
It is tempting to lament the post-1941 period and to suggest that
the old norm promoted credibility and legitimacy, helped stabilize the
law, and increased the likelihood of minimalist rulings. No one
should deny that if the Court is persistently fragmented, and if the
fragmentation occurs along political grounds, some people will lose
faith in it—especially if their preferred views are consistently rejected.
In any particular historical period, an analysis of the costs and benefits
of internal division may argue for an increase in self-silencing. We
have seen, however, that the arguments in favor of higher levels of
consensus rest on fragile empirical foundations. The post-1941 norm
cannot be shown to compromise the Court’s role in American government, or to disserve the constitutional order.
247
248
249
See supra Part I.B.; Members of the Supreme Court of the United States, supra note 125.
Cf. supra Part II.B.1–2.
Cf. supra Part I.C.
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APPENDIX
TESTING
SIGNIFICANCE OF THE DIFFERENCE BETWEEN THE 2013
TERM AND PREVIOUS TERMS250
The change in the trends that was observed in the 2013 Term was
quantified by calculating the likelihood that those numbers would be
observed if the “true” rate were taken from the rate that has been
observed for 1941–2012. The simplest way to do this would be to assume that all variation was due to binomial sampling around a constant overall rate, making the simplifying assumption that every case
has the same probability of being decided unanimously. For example,
based on the overall percentage of cases decided unanimously for
1941–2012, the “true” rate would be assumed to be 38.2%.
THE
FIGURE
APPENDIX
A-1. PERCENTAGE OF CASES DECIDED UNANIMOUSLY,
1941–2012
70%
60%
50%
40%
30%
20%
10%
0%
1940
1950
1960
1970
1980
Term
1990
2000
2010
However, more variance was observed in the 1941–2012 data than
that simple model would predict. This was determined by simulating
10,000 time series of unanimous decisions, fixing the number of cases
each year at their true value. The variance in the fraction of unanimous decisions for each simulated time series was calculated. The observed variance is larger than the variance for any simulated time
series, indicating that the data are overdispersed relative to the simple
binomial model. Thus, the simplest model would underestimate the
probability of very high and very low numbers of unanimous
decisions.
For this reason, the simple binomial model was generalized to
allow the underlying probability of a unanimous decision to vary independently from year to year. This was modeled with a beta-binomial
distribution: each year, the underlying rate is drawn independently
from a beta distribution and then the number of unanimous decisions
250
I am very grateful to Mary Schnoor for her work on this material.
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is drawn from a binomial distribution using that rate. This model
treats every year as exchangeable—so it assumes that there are no
trends or year-to-year correlations. The maximum likelihood parameters of the beta distribution (a´ _hat, aˆ_hat) were tabulated, and it was
confirmed that the mean of this distribution matches the observed
mean rate of unanimous decisions.
To check the beta-binomial model, time series were simulated as
above, drawing the rate parameter independently from the beta distribution for every year. This model captures the year-to-year variation
well. In 57% of simulated time series, the variance is greater than the
true year-to-year variance.
From this model, the probability of observing 43 unanimous cases
out of 69 can easily be calculated. 10,000 rate parameters were drawn
from the beta distribution, and for each a binomial random variable
was drawn from sample size 69. The observed 2013 rate was in the
99.5th percentile of the simulated results, meaning that it was higher
than all but <1% of the simulated rates, roughly a once-in-a-century
occurrence.
Similar tests were done for each of the other three trends: percentage of decisions with dissents, percentage of decisions with concurrences, and percentage of cases decided by a one-vote margin.
Results are tabulated below. The “1941–2012 Variance Percentile”
column demonstrates that the variance observed was close to the 50th
percentile of the variances generated by the simulations (i.e., 43rd
percentile corresponds to the above observation that in 57.2% of simulated time series, the variance is greater than the true year-to-year
variance). In addition to the rate of unanimous decisions being unexpectedly high, the rate of dissents was unexpectedly low (lower than
all but <1% of the simulated rates). The rate of concurrences and the
rate of cases decided by a one-vote margin, on the other hand, are
close to the middle of the distribution.
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TABLE A-1
Trend
Observed
in 2013
Beta
Parameters
(Į_hat,
ȕ_hat)
1941-2012
Variance
Percentile
2013 Rate
Percentile
Cases
Decided
Unanimously
43 / 69
( 33.3, 53.0 )
43
99.5
Decisions with
Dissenting
Opinions
27 / 69
( 32.2, 20.9 )
39
0.7
Decisions with
Concurring
Opinions
27 / 69
( 8.5, 14.4 )
40
56
Cases
Decided by
One-Vote
Margin
10 / 69
( 4.9, 24.4 )
28
40
TESTING THE SIGNIFICANCE OF CHANGES BETWEEN CHIEF JUSTICES
The Mann-Whitney U test was used to test whether the changes in
percentage of decisions with dissents, percentage of decisions with
concurrences, and percentage of cases decided by a one-vote margin
were significant. In other words, it tested the null hypothesis that
there was no change between the Chief Justices against the alternative
hypothesis that there was an increase or a decrease from one Chief
Justice to his successor. Significance was set at p < 0.01, to account for
the fact that multiple hypotheses were being tested. The U-values and
results are tabulated below. N1 and N2 indicate each Justice’s sample
size (i.e., the number of terms during which they served as Chief
Justice).
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TABLE A-2
Justice Comparison Trend
Marshall/Taney
Taney/Chase
Chase/Waite
Waite/Fuller
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
N1
N2
U
32
28
230
Significance of
Difference
p < 0.01
32
28
328.5
none
32
28
427
none
28
9
110.5
none
28
9
88
none
28
9
112
none
9
15
36
none
9
15
57
none
9
15
62
none
15
22
135
none
15
22
140
none
15
22
98
none
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TABLE A-2 continued
Fuller/White
White/Taft
Taft/Hughes
Hughes/Stone
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
N1
N2
U
22
11
67
Significance of
Difference
none
22
11
74.5
none
22
11
109
none
11
9
28
none
11
9
38
none
11
9
23.5
none
9
11
30
none
9
11
22
none
9
11
8
p < 0.01
11
5
0
p < 0.01
11
5
0
p < 0.01
11
5
4
p < 0.01
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TABLE A-2 continued
Stone/Vinson
Vinson/Warren
Warren/Burger
Burger/Rehnquist
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
Rate of
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin
N1
N2
U
5
7
0
Significance of
Difference
none
5
7
3
none
5
7
11
none
7
16
33
none
7
16
51
none
7
16
40
none
16
17
119
none
16
17
41
p < 0.01
16
17
77
none
17
19
70
p < 0.01
17
19
161
none
17
19
110.5
none
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TABLE A-2 continued
N1
N2
U
Rehnquist/Roberts Rate of
19
9
80.5
Significance of
Difference
none
19
9
77
none
19
9
80
none
Decisions with
Dissents
Rate of
Decisions with
Concurrences
Rate of Cases
Decided by
One-Vote
Margin

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